Ex Parte Waldmann

Patent Trial and Appeal Board

Jul 13, 2016

13296787 (P.T.A.B. Jul. 13, 2016)

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:
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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
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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
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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.
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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.
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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
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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
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