Ex Parte Bouaziz et al

Patent Trial and Appeal Board

Jun 28, 2018

14428540 (P.T.A.B. Jun. 28, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/428,540 03/16/2015
21171 7590 07/02/2018
ST AAS & HALSEY LLP
SUITE 700
1201 NEW YORK A VENUE, N.W.
WASHINGTON, DC 20005
FIRST NAMED INVENTOR
Tahar Bouaziz
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.
2319.1120 8882
EXAMINER
ROBERSON, JASON R
ART UNIT PAPER NUMBER
3669
NOTIFICATION DATE DELIVERY MODE
07/02/2018 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):
ptomail@s-n-h.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TAHAR BOU AZIZ, WERNER HAMBERGER,
WERGEN STEINLE, EMANUEL ANGELESCU, and
ULRICH MUELLER
Appeal2018-003094
Application 14/428,540 1
Technology Center 3600
Before ANNETTE R. REIMERS, JEFFREY A. STEPHENS, and
ERIC C. JESCHKE, Administrative Patent Judges.
STEPHENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Applicant AUDI AG ("Appellant")2 seeks our review under 35 U.S.C.
§ 134(a) from the Examiner's Final Office Action ("Final Act.") rejecting
1 This Application is accorded special status under the Patent Prosecution
Highway program. See Decision on Request to Participate in the Patent
Prosecution Highway Program and Petition to Make Special Under 37
C.F.R. § l.102(a), dated Mar. 2, 2016.
2 Applicant is also identified as the real party in interest. App. Br. 2.
Appeal2018-003094
Application 14/428,540
claims 11-26 and 28-32. See also Advisory Action (Mar. 17, 2017). We
have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
Claimed Subject Matter
Claims 11 and 32 are independent. Claim 11, reproduced below,
illustrates the claimed subject matter.
11. A method for operating a functional device of a motor
vehicle, the motor vehicle having an operator control device, the
operator control device comprising a rotary actuator which is
rotatably mounted on a securing element and which has at least
one coding element, the method comprising:
predefining a plurality of latched positions along a
rotational direction of the rotary actuator;
detecting an absolute rotational angle between the rotary
actuator and the securing element based on a coding of the at
least one coding element, to produce an output signal having an
analog profile;
determining a current latched position of the rotary
actuator based on the output signal;
determining a rotational angle between two latched
positions of the plurality of latched positions, based on the output
signal; and
controlling the functional device as a function of the
rotational angle between two latched positions if the rotary
actuator is located between the two latched positions, thereby
providing an operator of the operator control device with
feedback regarding how a clockwise or counterclockwise
direction of rotation will cause the functional device to be
operated, the feedback being provided before the rotary actuator
is latched into a next adjacent latched position.
2
Appeal2018-003094
Application 14/428,540
Rejections3
I. Claims 11 and 32 stand rejected under pre-AIA 35 U.S.C.
§ I03(a) over Weber (US 2012/0239230 Al, published Sept. 20, 2012) and
Bailey (US 2007/0063995 Al, published Mar. 22, 2007). Final Act. 3---6.
II. Claims 11-16, 18-20, 25, 28, 29, 31, and 32 stand rejected
under pre-AIA 35 U.S.C. § I03(a) as unpatentable over Han (US
2009/0140993 Al, published June 4, 2009) and Bailey. Final Act. 6-16.
III. Claims 11-16, 18-20, 25, 28, 29, 31, and 32 stand rejected
under pre-AIA 35 U.S.C. § I03(a) as unpatentable over Weber, Han, and
Bailey. Final Act. 16-17.
IV. Claims 17 and 21 stand rejected under pre-AIA 35 U.S.C.
§ I03(a) as unpatentable over Han and Bailey (or, in the alternative, Weber,
Han, and Bailey), and further in view of Levin (US 2008/0158149 Al,
published July 3, 2008). Final Act. 17-18.
V. Claims 22-24 and 26 stand rejected under pre-AIA 35 U.S.C.
§ I03(a) as unpatentable over Han and Bailey (or, in the alternative, Weber,
Han, and Bailey), and further in view of Levin and Wang (US 2007/0236479
Al, published Oct. 11, 2007). Final Act. 18-20.
VI. Claim 30 stands rejected under pre-AIA 35 U.S.C. § I03(a) as
unpatentable over Han and Bailey ( or, in the alternative, Weber, Han, and
Bailey), and further in view of Goldenberg (US 2008/0055241 Al,
published Mar. 6, 2008). Final Act. 20-21.
3 The Examiner withdrew the rejection of claims 11-26 and 28-31 under 35
U.S.C. § 112, second paragraph. Ans. 4.
3
Appeal2018-003094
Application 14/428,540
DISCUSSION
Rejection I
Appellant argues independent claims 11 and 32 together as a group.
Appeal Br. 19. We select claim 11 as representative. 37 C.F.R.
§ 4I.37(c)(l)(iv).
Appellant contends "Weber does not disclose 'determining a current
latched position of the rotary actuator based on the output signal,' as recited
by the independent claims." Appeal Br. 11; see Reply Br. 2. Appellant
further explains that "Weber operates the locomotive based on the specific
angle, not based on a latching position." Appeal Br. 12.
The Examiner determines that the broadest reasonable interpretation
of the above-recited limitation of claim 11 "includes a device capable of
determining when a latched position is reached, and controlling functions
based on the determined angle at that latched position." Ans. 5. The
Examiner finds that Weber includes this teaching because "measuring device
80 generates the appropriate output signal for any potential angle, including
the angles of recess positions 50, 51 and 52." Ans. 6. In addition, the
Examiner notes that, "in the alternative, the Examiner also cites this
limitation as taught by Bailey [paragraph 16]. This point has not been
argued by the Appellant." Ans. 7.
Bailey teaches in paragraph 16 that rotary knob 62 has "a number of
rotational detent positions that each correspond to a different menu item,"
and that these detent positions "enable a user to easily scroll through a series
of menu items and know when one is locked into a selectable position."
Further details about how this is accomplished are described. Bailey ,r 16.
Based on these teachings, we agree with the Examiner's alternative finding,
4
Appeal2018-003094
Application 14/428,540
which is not persuasively challenged by Appellant, that Bailey teaches
"determining a current latched position of the rotary actuator based on the
output signal," as recited in claim 11.
Appellant next argues "Weber does not disclose ' [an] operator control
device comprising a rotary actuator which is rotatably mounted on a
securing element' as the claims require." Appeal Br. 12 (alteration in
original). Appellant describes Weber's control device as a locomotive
control lever, and notes Weber's teaching that Weber's control device has a
maximum pivot angle. Id. ( citing Weber ,r 2). Appellant argues that
although Weber's lever can pivot, it cannot rotate. Id. Appellant states that
"Wiktionary defines ... 'rotate' as (1) to spin, tum or revolve and (2) to
advance through a sequence, to take turns." Id.
The Examiner determines claim 11 does not designate a specific range
of motion of the control device. Ans. 8. We agree, and we further agree
with the Examiner's finding that Weber's control lever is a "rotary actuator
which is rotatably mounted" as recited in the preamble to method claim 11.
A lever mounted on a pivot undisputedly rotates about the pivot. Using the
lever to rotate the control does not change its character as a rotary actuator
as distinct from, for example, a button, slider, or other type of control.
Appellant also argues there is no reason why one of ordinary skill in
the art would have modified Weber to substitute its locomotive control lever
with a rotary actuator such as that disclosed in Bailey. Appeal Br. 19. As
the Examiner points out, in the rejection "Weber is not being directly
modified by the rotary knob of Bailey, only the detection features of Bailey"
are being cited. Ans. 20. The Examiner's statement is consistent with the
combination of the teachings of Weber and Bailey relied on in the Final
5
Appeal2018-003094
Application 14/428,540
Action. See Final Act. 4---6. Therefore, Appellant's arguments regarding
modification of Weber to use Bailey's control do not address the rejection
presented by the Examiner and fail to inform us of error therein.
Appellant argues the Examiner cites Bailey "for controlling the
functional device as a function of the absolute rotational angle if the rotary
actuator is located between two latched positions." Appeal Br. 12-13.
Appellant does not provide a citation to the Final Action in support of this
argument. It is apparent from the Examiner's rejection that the Examiner
relies on Weber, specifically Figure 2 and paragraphs 27-30, for teaching
"controlling the functional device as a function of the rotational angle
between two latched positions if the rotary actuator is located between the
two latched positions," as recited in claim 11. Final Act. 5; see also Ans. 9
("[I]t should be noted that this limitation was not cited to Bailey in the
Office Action .... "). Thus, Appellant's arguments regarding Bailey do not
inform us of error in the Examiner's finding that this limitation is taught in
Weber. 4
Appellant also asserts:
[E]ven if the rotary actuator in Bailey et al. were incorporated
into Weber, neither reference suggests "providing an operator of
the operator control device with feedback regarding how a
clockwise or counterclockwise direction of rotation will cause
the functional device to be operated, the feedback being provided
4 The Examiner's Answer further finds that Bailey also teaches "controlling
the functional device as a function of the rotational angle between two
latched positions if the rotary actuator is located between the two latched
positions," as recited in claim 11. Ans. 9-11. Appellant's Reply Brief
addresses the Examiner's alternative findings regarding Bailey, but does not
address the Examiner's findings that Weber teaches this disputed limitation.
Reply Br. 2-3.
6
Appeal2018-003094
Application 14/428,540
before the rotary actuator is latched into a next adjacent latched
position."
Appeal Br. 19. Appellant's argument is conclusory and does not explain
why the Examiner erred in finding these limitations are taught by the
combined teachings of the references. 37 C.F.R. § 4I.37(c)(l)(iv) ("The
arguments shall explain why the examiner erred as to each ground of
rejection contested by appellant."); see also In re Lovin, 652 F.3d 1349,
1357 (Fed. Cir. 2011) (holding that "the Board reasonably interpreted Rule
41.37 to require more substantive arguments in an appeal brief than a mere
recitation of the claim elements and a naked assertion that the corresponding
elements were not found in the prior art").
Accordingly, for the reasons discussed above and by the Examiner,
we are not informed of error in the Examiner's rejection of representative
claim 11 under 35 U.S.C. § 103(a) as unpatentable over Weber and Bailey.
Thus, we sustain the rejection of claim 11, and, for the same reasons, the
rejection of claim 32 on the same ground.
Rejection II
Appellant argues all claims rejected as unpatentable over Han and
Bailey as a group. Appeal Br. 19-20. We select claim 11 as representative.
37 C.F.R. § 4I.37(c)(l)(iv).
In addition to the arguments regarding Bailey that we addressed above
with respect to Rejection I, Appellant argues Han does not "inherently
detect[] an absolute rotational angle, where the absolute rotation angle is
defined as a rotational angle between two latched positions." Appeal Br. 15.
Appellant disagrees with the Examiner's reliance on Figures 7 and 15 of
7
Appeal2018-003094
Application 14/428,540
Han, which the Examiner finds show a rotary encoder plate 360 with ten
slots (sensing positions) arranged over approximately 180 degrees of travel
and a detent pattern with five detents over 180 degrees. Appeal Br. 14--15.
Appellant argues Han's paragraphs 88-90, which describe encoder plate
360, do not suggest that Han intentionally set the number of encoder plate
sensing positions to be double the number of detent engaged positions to be
able to detect a position between detents. Appeal Br. 16-1 7. Appellant
acknowledges drawings may be used as prior art, but states that "MPEP
§ 2125 ... makes it clear that the proportions of features in the drawings are
not evidence of actual proportions when the drawings are not to scale." Id.
at 17. Appellant concludes that "[b ]ecause the disclosure of Han et al. gives
no indication that the drawings were meant to show detecting the absolute
rotational angle between latched positions, it is submitted that the drawings
do not show this." Id.
We are not persuaded. The Examiner's findings do not rely on the
scale of Figures 7 and 15 of Han, but rather the number of encoding
positions and detent positions illustrated. Appellant does not dispute in the
Appeal Brief that, if Han teaches an encoding position between each detent
position, then the absolute rotational angle as claimed is taught. 5 Therefore,
we are not informed of error in the rejection on this basis.
5 In the Reply Brief, Appellant contends Han does not teach detecting an
absolute rotational angle because Han detects no more than a single position
between each pair of latched positions. Reply Br. 3--4. Appellant makes no
showing on this record of a reason such arguments could not have been
presented in the Appeal Brief. Therefore, such newly raised arguments are
untimely and waived. See 37 C.F.R. § 41.41(b)(2) ("Any argument raised in
the reply brief which was not raised in the appeal brief, or is not responsive
to an argument raised in the examiner's answer, ... will not be considered
8
Appeal2018-003094
Application 14/428,540
Appellant also provides an excerpt from an International Searching
Authority report, which Appellant argues "found that Han et al. does not
disclose the features for which the U.S. Office Action cites Han." Appeal
Br. 17. Appellant "recognizes that the U.S. Examiners are not bound by
decisions of a foreign patent office." Id. We also do not find within the
International Searching Authority report a reasoned explanation of the
findings that inform us of error in the Examiner's findings here.
Appellant's remaining arguments regarding Han are directed to
whether it would have been obvious to modify Han based on Bailey to
determine a rotational angle between two latched positions of the plurality of
latched positions based on an output signal. Appeal Br. 19-20. Because
Appellant has not informed us of error in the Examiner's finding that Han
teaches this limitation, we need not consider Appellant's argument that it
would not have been obvious to modify Han to incorporate this feature.
As with the rejection based on Weber and Bailey, Appellant also
asserts:
Even if Han et al. were modified to detect the rotational
angle between two latching positions, neither reference suggests
"providing an operator of the operator control device with
feedback regarding how a clockwise or counterclockwise
direction of rotation will cause the functional device to be
operated, the feedback being provided before the rotary actuator
is latched into a next adjacent latched position."
Appeal Br. 20. Again, Appellant's argument is conclusory and does not
explain why the Examiner erred in finding these limitations are taught by the
by the Board for purposes of the present appeal, unless good cause is
shown.").
9
Appeal2018-003094
Application 14/428,540
combined teachings of the references. 37 C.F.R. § 4I.37(c)(l)(iv); see also
In re Lovin, 652 F.3d at 1357.
Accordingly, for the reasons discussed above and by the Examiner,
we are not informed of error in the Examiner's rejection of representative
claim 11 under 35 U.S.C. § 103(a) as unpatentable over Han and Bailey.
Thus, we sustain the rejection of claim 11, and, for the same reasons, the
rejection of claims 12-16, 18-20, 25, 28, 29, 31, and 32 on the same ground.
Rejection III
Appellant presents additional arguments challenging the Examiner's
rejection over Weber, Han, and Bailey. Appeal Br. 20-21. The Examiner
finds "[i]t would have been obvious to a person of ordinary skill to combine
the features of Han and Bailey into the invention of Weber," but does not
explain which teachings in particular of each reference are relied upon.
Final Act. 16. The Examiner refers to the previous mapping of claims to
Weber, Han, and Bailey, id., but due to the overlapping nature of these
findings, we are unable to determine how one of ordinary skill in the art
would have combined these teachings according to the Examiner's rejection.
Therefore, we are unable to determine whether Appellant's arguments
inform us of error in the rejection, and we do not sustain the Examiner's
rejection of claims 11-16, 18-20, 25, 28, 29, 31, and 32 under 35 U.S.C.
§ 103(a) as unpatentable over Weber, Han, and Bailey. For the same
reasons, we do not sustain the alternative rejections set forth in Rejections
IV-VI that rely on combined teachings of Weber, Han, and Bailey.
10
Appeal2018-003094
Application 14/428,540
Rejections IV and VI
Regarding the rejection of claims set forth in Rejections IV and VI,
Appellant argues that the additional reference relied on in each rejection
(Levin and Goldenberg, respectively) is cited only for the additional features
of the dependent claims and is not cited for the features of the independent
claims. Appeal Br. 21-22. For the same reasons that we sustain the
rejection of independent claim 11 set forth in Rejection II, we sustain the
rejection under 35 U.S.C. § 103(a) of: (1) claims 17 and 21 as unpatentable
over Han, Bailey, and Levin, and (2) claim 30 as unpatentable over Han,
Bailey, and Goldenberg. 6
Rejection V
Appellant argues claims 22-24 and 26 as a group. Appeal Br. 21-22.
We select claim 22 as representative. 37 C.F.R. § 4I.37(c)(l)(iv).
Claim 21, which depends from claim 20, recites that "the display
device zooms in or zooms out the display by a predefined first factor each
time the latching control signal is output." Claim 22, which depends from
claim 21, recites that "the display device zooms in or zooms out the display
by a predefined second factor each time the intermediate control signal is
output, the second factor being smaller than the first factor." The
"intermediate control signal" recited in claim 22 is introduced in claim 20,
which depends from claim 12, and recites in part "an intermediate control
signal for controlling the functional device is output for each intermediate
6 As noted above in addressing Rejection III, we do not sustain Rejections
IV and VI based on the alternative combination of Weber, Han, and Bailey.
11
Appeal2018-003094
Application 14/428,540
position detected," where the intermediate positions are "defined between
each pair of adjacent latched positions."
Appellant argues that although Wang's rotational control ring 120
may be used to zoom in or zoom out of an image, Wang does not teach that
the image is zoomed in or zoomed out by a first factor when a latching
control signal is output and zoomed in or zoomed out by a second factor
when an intermediate signal is output. Appeal Br. 21. Appellant's argument
is based on Wang's teaching that the rotational control ring may have a
"stepless variable speed function," which Appellant argues "leads to the
question whether Wang et al. even has anything similar to a latching control
signal or anything similar to the intermediate control signal." Id.
To the extent Appellant is arguing that Wang's use of the term
"stepless" means there are no "latched positions" as recited in claim 1, the
Examiner responds that Han and Levin are relied on for this feature, not
Wang. Ans. 29. Based on the rejections of claims from which claim 22
depends, we agree. The Examiner also explains that Wang is relied on for
teaching a variable rate of zoom. Ans. 28. Appellant does not persuasively
challenge these findings and, therefore, does not inform us of error in the
rejection.
The Examiner also determines that "the broadest reasonable
interpretation of claims 21 and 22 includes any zoom control feature that
zooms at a consistent level throughout the turning of the control device,
between latched positions." Id. Although a consistent level of zoom may
seem to be at odds with first and second "factors" of zoom as recited in the
claims, the Examiner's interpretation is consistent with the Specification.
The latching control signal is output for each latched position that is
12
Appeal2018-003094
Application 14/428,540
detected, and the intermediate control signal is output for each intermediate
position detected, as recited in claims 12 and 20. Paragraph 32 of the
Specification explains that the display may be made smaller by a
predetermined factor when the rotary actuator is moved from one latched
position to a next latch position, and that between these latched positions the
display is enlarged or made smaller by a smaller factor as a function of the
intermediate control signals. "If a corresponding number of intermediate
positions 24 is provided between the latched positions 22, a display can be
made possible in which the display 32 is almost continuously enlarged or
made smaller during a rotation of the rotary actuator." Spec. ,r 33. In other
words, the change in zoom level from one latched position to the next by a
"first factor" is not a direct jump, as there are intermediate changes in zoom
level between latched positions such that a continuous zoom may be
perceived by the user.
The Examiner finds Levin teaches that its rotary knob controls zoom
levels on a vehicle navigation map, and that Levin's "sensor generates a
proportional input signal based at least in part on a manipulation of an input
device." Ans. 28 (citing Levin ,r,r 82, 84, 98). The Examiner further finds
that "[d]etents of Levin [described at paragraphs 92-95] may be included in
any increments of the one degree increments that the sensor may detect,"
and that, "any detent position above a one degree increment fully meets the
limitation of the first factor, and the one degree increments qualify as the
second factor, inherently." Id.
Appellant does not persuasively challenge the Examiner's
interpretation of the zoom factors, the findings based on Levin, or the
Examiner's determination that these teachings of Levin "clearly render[]
13
Appeal2018-003094
Application 14/428,540
these features obvious." Ans. 29. Thus, Appellant also has not informed us
of error in the rejection on this basis. The addition of Wang's teaching that a
rate of zoom may be varied further addresses a construction of claim 22 in
which there is a change in the rate of zoom.
Accordingly, for the reasons discussed above and by the Examiner,
we are not informed of error in the Examiner's rejection of representative
claim 22 under 35 U.S.C. § 103(a) as unpatentable over Han, Bailey, Levin,
and Wang. Thus, we sustain the rejection of claim 22, and, for the same
reasons, the rejection of claims 23, 24, and 26 on the same ground. 7
DECISION
We affirm the Examiner's rejections under 35 U.S.C. § 103(a) of:
claims 11 and 32 as unpatentable over Weber and Bailey; claims 11-16, 18-
20, 25, 28, 29, 31, and 32 over Han and Bailey; claims 17 and 21 as
unpatentable over Han, Bailey, and Levin; claims 22-24 and 26 as
unpatentable over Han, Bailey, Levin, and Wang; and claim 30 as
unpatentable over Han, Bailey, and Goldenberg.
We reverse the Examiner's alternative rejections of claims under
35 U.S.C. § 103(a) based on Weber, Han, and Bailey, including: claims 11-
16, 18-20, 25, 28, 29, 31, and 32 as unpatentable over Weber, Han, and
Bailey; claims 17 and 21 as unpatentable over Weber, Han, Bailey, and
Levin; claims 22-24 and 26 as unpatentable over Weber, Han, Bailey,
Levin, and Wang; and claim 30 as unpatentable over Weber, Han, Bailey,
and Goldenberg.
7 As noted above in addressing Rejection III, we do not sustain Rejection V
based on the alternative combination of Weber, Han, and Bailey.
14
Appeal2018-003094
Application 14/428,540
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
15