Bayerische Motoren Werke Aktiengesellschaft

Patent Trials and Appeals Board

Sep 3, 2020

15019015 - (D) (P.T.A.B. Sep. 3, 2020)

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.
15/019,015 02/09/2016 Stephan AUGUSTIN 080437.68453US 5359
23911 7590 09/03/2020
CROWELL & MORING LLP
INTELLECTUAL PROPERTY GROUP
P.O. BOX 14300
WASHINGTON, DC 20044-4300
EXAMINER
JOHNSON, VICKY A
ART UNIT PAPER NUMBER
3656
NOTIFICATION DATE DELIVERY MODE
09/03/2020 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
mloren@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 STEPHAN AUGUSTIN
Appeal 2019-005057
Application 15/019,015
Technology Center 3600
Before EDWARD A. BROWN, CHARLES N. GREENHUT, and
LEE L. STEPINA, Administrative Patent Judges.
GREENHUT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–17. See Final Act. 1. We have
jurisdiction under 35 U.S.C. § 6(b). An oral hearing was conducted August
18, 2020.
We AFFIRM.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Bayerische Motoren
Werke Aktiengesellshaft. Appeal Br. 1.
Appeal 2019-005057
Application 15/019,015
2
CLAIMED SUBJECT MATTER
The claims are directed to a control grip for a vehicle. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A control grip configured to control acceleration and/or speed
of a vehicle based on a torque applied to the control grip about a
longitudinal axis of the control grip, the control grip comprising:
a gripping region configured to be gripped by a hand of a
user along the longitudinal axis of the control grip; and
an attachment region configured to attach the gripping
region in a non-rotatable manner to a component of the vehicle,
wherein the gripping region and the attachment region are
connected rigidly to one another, the control grip has at least one
measuring element configured to determine the torque which is
applied to the gripping region by the user about the longitudinal
axis of the control grip, and the acceleration and/or the speed of
the vehicle depend on the torque which is applied to the gripping
region by the user.
REFERENCE
The prior art relied upon by the Examiner is:
Name Reference Date
Chippa WO 2012/042528 A2 Apr. 5, 2012

REJECTION
Claims 1–17 are rejected under 35 U.S.C. § 102(a)(1) as being
anticipated by Chippa. Final Act. 2.
OPINION
The claims are argued as a group for which claim 1 is representative
under 37 C.F.R. § 41.37(c)(1)(iv).
Appellant’s Specification discloses the use of measuring elements
such as strain gauges 12, 14, 16 on a vehicle control grip to allow the driver
Appeal 2019-005057
Application 15/019,015
3
of the vehicle to adjust its speed or acceleration by applying torque to the
control grip without the need for significant rotation of the grip, as is the
convention, particularly in motorcycles. The Examiner correctly points out,
that because the terms “connected rigidly” and “non-rotatable” are expressly
defined in the Specification, the definition in the Specification must be used
for claim construction purposes. In re American Academy of Science Tech
Center, 367 F. 3d 1359, 1364 (Fed. Cir. 2004) (“[T]he PTO must apply the
broadest reasonable meaning to the claim language, taking into account any
definitions presented in the specification.”) (quoting In re Bass, 314 F.3d
575, 577 (Fed. Cir. 2002)). Paragraph 36 of the Specification provides:
The expression “connected rigidly”, the expression “non-
rotatable” and the expression “axially non-rotatable” are to be
understood from the view of the driver. As a result of the torque
which is applied to the gripping region 2, 4 by the driver, merely
a torsion which cannot be perceived or can be perceived scarcely
by the driver and is detected, for example, in the detection region
10 takes place.
This description is consistent with the principles of operation of strain
gauges. Strain gauges are fairly common and well-known devices that can
be used to detect very slight material deformations. However, the degree of
deformation exhibited depends on the applied force or torque and the
properties of the material itself. Appellant argues Chippa discloses no such
arrangement. App. Br. 4–7.
We recognize that Chippa leaves something to be desired in terms of
its clarity on the point of precisely what is meant by “throttle position
sensor.” One skilled in the art would recognize the subject matter of Chippa
and that of the present application derive from different parts of the world
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Application 15/019,015
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and may not share precisely the same lexicon. It is important to consider
Chippa’s terminology in the context of the Chippa disclosure as a whole.
The term “position” as used to modify the term “sensor,” when read in
isolation, might appear to imply there must be movement of the throttle pipe
to different positions to be sensed. However, such an understanding would
be plainly inconsistent with the cited portion of Chippa (p. 3, ll. 25–27 (cited
at Ans. 5)) that states “[t]here is no requirement for the throttle pipe to be
rotated . . . in order to adjust the throttle position as in conventional method”
(emphasis added). At least two things can be deduced from this statement.
First, Chippa does not appear to regard “throttle position” to be
synonymous with the position of the “throttle pipe.” In the context of a
typical internal combustion engine (“ICE”) system, for example (as used in
Chippa’s first embodiment (p. 5 et seq.)), “throttle position” may often refer
to the degree of openness of a valve controlling the amount of air and fuel
delivered to the engine cylinders. We recognize Chippa also uses the term in
the context of the electric motor driven embodiment (p. 7 et seq.). However,
read in context, we think the term “throttle position sensor” most likely
refers to a sensor used to determine the level of the operator’s demand for
power, not any physical “position” of the “throttle pipe.” This understanding
is consistent with other teachings of Chippa. For example, what is actually
generated by the “throttle position sensor” is not a signal indicative of the
throttle pipe location in space, but “a signal indicative of the magnitude and
direction of the torque [applied on the throttle pipe].” Chippa p. 5, ll. 10–11.
Generation of a signal measuring torque on the throttle pipe does not require
or imply any positional changes with regard to the throttle pipe.
The second thing that can be deduced from the cited portion of Chippa
reproduced above is the clear statement that “[t]here is no requirement for
Appeal 2019-005057
Application 15/019,015
5
the throttle pipe to be rotated.”2 Appellant relies heavily on Chippa’s
disclosure that “[t]he throttle pipe . . . rotate[s]/move[s] by a small
angle/small distance during torque application.” See App. Br. 4 (quoting
Chippa p. 9, ll. 1–3)(emphasis omitted). We do not think the disclosure in
Chippa of rotation or movement by a small angle or distance is inconsistent
with Chippa’s disclosure that “[t]here is no requirement for the throttle pipe
to be rotated” for the same reasons Appellant’s disclosure of “a torsion
which cannot be perceived or can be perceived scarcely” is not inconsistent
with the claim terms “connected rigidly” and “non-rotatable.” The context
must be considered. Immediately after Chippa’s acknowledgement of the
possibility of rotation by a small angle, Chippa attributes this to “the
inherent material properties of the throttle position sensor.” “[M]aterial
properties” are what provide the slight torsion in Appellant’s strain gauge
arrangement as well. Appellant has not apprised us of any reason to believe
one skilled in the art would understand Chippa’s movement attributable to
material properties differs in any significant way from the small
deformation-type movement detected by Appellant’s strain gauges.
Appellant offers no alternate explanations regarding Chippa’s description in
this regard. If it is the material properties that allow for throttle pipe
movement “less than a predetermined small angle” (App. Br. 4 (citing
Chippa p. 5, ll. 6–7)) then such movement is fairly characterized as being
within the amount of movement permitted by the express definition in

2 Chippa states this more definitively in the context of the third embodiment
which does not appear to contain any material differences in this respect:
“there is no rotation of throttle pipe . . . in order to accelerate or decelerate
the vehicle.” Chippa p. 8, ll. 15–17.
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Application 15/019,015
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paragraph 36 of Appellant’s Specification (reproduced above) because both
movements are attributable to the same phenomenon—deformation.
We recognize that Chippa primarily discusses the absence of rotation
with regard to the functioning of the throttle pipe and that does not, without
more, necessarily indicate the recited structure of a non-rotatable attachment
and rigid connection. However, again, Chippa’s disclosures must be read in
context and considered as a whole. Immediately after the portion of Chippa
reproduced and relied on by Appellant, Chippa goes on to say that “the wear
and tear of moving parts like throttle pipe, throttle cable and accelerator
pedal are significantly reduced and cases of rider wrist pain, ankle pain,
fatigue and discomfort are alleviated.” Chippa p. 9, ll. 6–8; see also p. 2, ll.
5–7 ([wear on the throttle cable and other moving parts] is reduced to nil in
the present invention with no requirement of rotation of the throttle pipe).
This disclosure strongly implies that in the course of measuring the
magnitude and direction of the torque applied to the throttle pipe (p. 5, ll.
10–11), Chippa does not permit its rotation because that would nullify many
of the advantages Chippa touts.
Chippa might not expressly state that Chippa’s grip has “an
attachment region configured to attach the gripping region in a non-rotatable
manner to a component of the vehicle” and “the gripping region and the
attachment region are connected rigidly to one another.” However,
anticipation is a question of fact, but is not an ipsissimis verbis test. In re
Bond, 910 F.2d 831, 832 (Fed. Cir. 1990) (citations omitted). The express,
implicit, and inherent disclosures of a prior art reference may be relied upon
in the rejection of claims under 35 U.S.C. § 102. The dispositive question is
“whether one skilled in the art would reasonably understand or infer” that a
reference teaches or discloses all of the elements of the claimed invention. In
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Application 15/019,015
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re Baxter Travenol Labs 952 F.2d 388, 390 (Fed. Cir. 1991). “[I]n
considering the disclosure of a reference, it is proper to take into account not
only specific teachings of the reference but also the inferences which one
skilled in the art would reasonably be expected to draw therefrom.” In re
Preda, 401 F.2d 825, 826 (CCPA 1968) (citing In re Shepard, 319 F.2d 194
(CCPA 1963)). We have carefully considered the totality of evidence before
us, giving due consideration to Appellant’s arguments, which do not apprise
us of any plausible alternate ways to understand Chippa’s disclosure when
read in its entirety. For the reasons discussed above, we agree with the
Examiner that the skilled artisan would reasonably infer the presence of “an
attachment region configured to attach the gripping region in a non-rotatable
manner to a component of the vehicle” and “the gripping region and the
attachment region [] connected rigidly to one another” within Chippa’s
device. We therefore conclude that a preponderance of the evidence supports
the Examiner’s finding of anticipation. See In re Caveney, 761 F.2d 671, 674
(Fed. Cir. 1985) (A preponderance of the evidence must show
nonpatentability before the PTO may reject the claims of a patent
application.)

CONCLUSION
The Examiner’s rejection is AFFIRMED.
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Application 15/019,015
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DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–17 102(a)(1) Chippa 1–17

TIME PERIOD FOR RESPONSE
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