Ex Parte Braun et al

Patent Trial and Appeal Board

Mar 16, 2016

12305505 (P.T.A.B. Mar. 16, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/305,505 12/18/2008
34044 7590 03/18/2016
MICHAEL BEST & FRIEDRICH LLP (Bosch)
100 EAST WISCONSIN A VENUE
MILWAUKEE, WI 53202
FIRST NAMED INVENTOR
Peter Braun
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.
022862-1171-usoo 5079
EXAMINER
CARRASQUILLO, JORGE L
ART UNIT PAPER NUMBER
2837
NOTIFICATION DATE DELIVERY MODE
03/18/2016 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):
mkeipdocket@michaelbest.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PETER BRAUN, NORBERT WEGNER, and
HARALD RETSCH
Appeal2014-002525
Application 12/305,505
Technology Center 2800
Before MICHAEL P. COLAIANNI, N. WHITNEY WILSON, and
CHRISTOPHER C. KENNEDY, Administrative Patent Judges.
WILSON, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Action mailed March 4, 2013 ("Final Act."), finally rejecting claims
1--4, 7-9, 11-14, and 17-21. We have jurisdiction over the appeal under
35 U.S.C. § 6(b).
We reverse.
1 According to Appellants, the real party in interest is Robert Bosch GmbH
(Appeal Br. 2).
Appeal2014-002525
Application 12/305,505
CLAHvIED SUBJECT ivIATTER
Appellants' invention is directed to a device and a method for
actuating a wiper system (Abstract). Independent claim 1 is directed to a
device for actuating a wiper system which reduces a wiping frequency when
a load variable has exceeded a threshold for a predetermined time period or,
alternatively, the device reduces the wiping frequency when the load
variable has exceeded the threshold for a predefined number of wiping
cycles (Spec. 4--5). Appellants state that the claimed system does not reduce
the wiping frequency for a condition where the wiper is temporarily stuck
and then breaks free, or for a short change in required torque such as, for
example, when going under a bridge during a rain storm (Spec. 1 O; Appeal
Br. 6). Claim 20 is directed to a device for actuating a wiper system, in
which the wiping frequency is reduced if the load variable exceeds a load
threshold, and then reset to the first wiping frequency if a second load
threshold is undershot. Details of the claimed invention are set forth in
representative claims 1 and 20, which are reproduced below from the Claims
Appendix of the Appeal Brief (key claim limitations in italics):
1. A device for actuating a wiper system, having a drive unit (2)
for driving at least one wiper arm (4), and having a control unit
( 6), characterized in that the control unit ( 6) sets a wiping
frequency of the wiper arm as a function of a load variable
which is dependent on the torque which is to be applied by the
drive unit (2) during a wiping operation; wherein the control unit
( 6) reduces the wiping frequency of the wiper arm ( 4 ), from a
first wiping frequency (WHl) to a second reduced wiping
frequency (WH2) if the load variable exceeds a load threshold
for a predefined time period (DT) or a predefined number of
wiping cycles.
2
Appeal2014-002525
Application 12/305,505
20. A device for actuating a wiper system, having a drive unit
(2) for driving at least one wiper arm (4), and having a control
unit ( 6), characterized in that the control unit ( 6) sets a wiping
frequency of the wiper arm as a function of a load variable
which is dependent on the torque which is to be applied by the
drive unit (2) during a wiping operation; wherein the control
unit ( 6) reduces the wiping frequency of the wiper arm ( 4 ), from
a first wiping frequency (WH 1) to a second reduced wiping
frequency (WH2) if the load variable exceeds a load threshold,
and sets the wiper arm (4) to the first wiping frequency (WHJ)
after a second load threshold (LS2) has been undershot,
immediately or in accordance with a predefined continuous rise.
DISCUSSION
Claims 1--4, 7-9, 11-14, and 17-21 are rejected under 35 U.S.C. §103(a)
as being unpatentable over Savage2 in view of Buchanan. 3 Appellants make
the same arguments with respect to claims 1 and 11, and separate arguments
with respect to independent claims 20 and 21 (see, Appeal Br. 7, 9, 11).
Claims 1 and 11 share a common limitation ("if the load variable exceeds a
load threshold for a predefined time period (DT) or for a predefined number of
wiping cycles"), and claims 20 and 21 share a common limitation (resetting the
wiping frequency to a first frequency when the torque drops below a
threshold). Accordingly, our analysis will focus on independent claims 1, 11,
20 and 21.
2 Savage et al., WO 96/37391, published November 28, 1996.
3 Buchanan et al., U.S. Patent No. 6,144,906, issued November 7, 2000.
3
Appeal2014-002525
Application 12/305,505
Claims 1 and 11
Appellants contend that neither Savage nor Buchanan discloses or
suggests a wiper system which reduces the wiping frequency if a load variable
(which corresponds to the force needed to move the wipers over the
windshield) exceeds a load threshold for either a predetermined time period or
a predefined number of wiping cycles.
A key issue is the meaning of the claim phrase: "if the load variable
exceeds a load threshold for a predefined time period (DT) or a predefined
number of wiping cycles" (claim 1 ). "The PTO must give claims their
broadest reasonable construction consistent with the specification ....
Therefore, we look to the specification to see if it provides a definition for
claim terms, but otherwise apply a broad interpretation." In re ICON Health &
Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007).
In this instance, the Specification explicitly states that the control unit
can reduce the wiping frequency of the wiper arm after the load variable has
exceeded the load threshold, "after a predefined time period or after a
predefined number of wiping cycles" (Spec. 5). The Specification further
explains that "[i]n order to rule out the possibility that brief increases in the
load variable do not lead directly to a reduction in the wiping frequency, the
switchover signal cannot be generated until the load variable exceeds the first
load threshold for a specific time period" (Spec. 9). Finally, the Specification
makes clear that requiring that load variable to exceed a threshold for a
predetermined period of time "has the effect ... of ensuring that increases in
load which occur briefly do not lead immediately to a reduction in the wiping
frequency" (Spec. 10).
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Appeal2014-002525
Application 12/305,505
The Examiner finds that Savage's FIG. 12 and pages 7-12 "clearly
disclose setting a frequency as a function of load (i.e. current and/or torque)
from a first wiping frequency ( fs) to a second reduced wiping frequency ( fmin)
if the load variable exceeds a load threshold for a predefined time period (Is)"
(Ans. 2-3). However, as argued by Appellants, Savage's variable "Is" is a
predetermined current, not a time period (Savage, p. 7)4 . Thus, the Examiner's
finding that Savage discloses the claim limitation "if the load variable exceeds
a load threshold for a predefined time period (DT) or a predefined number of
wiping cycles" is not supported by a preponderance of the evidence.
The Examiner also finds that Buchanan teaches that "wiping frequency
can be adjusted with regards to torque for a predetermined time period or for a
number of wiping cycles." However, the claim limitation does not relate to
adjusting the wiping frequency for a predetermined time period or number of
wiping cycles. Instead, the limitation at issue relates to delaying the
adjustment of the wiping frequency until the load variable exceeds the load
threshold for a predetermined period of time. Therefore, the Examiner's
findings regarding Buchanan's disclosure are not pertinent to the claims.
The Examiner has the initial burden of establishing a prima facie case
of obviousness based on an inherent or explicit disclosure of the claimed
subject matter under 35 U.S.C. § 103. In re Oetiker, 977 F.2d 1443, 1445
(Fed. Cir. 1992) ("[T]he examiner bears the initial burden, on review of the
prior art or on any other ground, of presenting a prima facie case of
unpatentability."). To establish a prima facie case of obviousness, the
4 Savage states: "A fixed relationship between current and frequency (i.e.,
the plot shown in block 16) is used to find a maximum current, Is, for the
user-selected frequency, fs" (p. 7).
5
Appeal2014-002525
Application 12/305,505
Examiner must show that each and every limitation of the claim is described
or suggested by the prior art or would have been obvious based on the
knowledge of those of ordinary skill in the art. In re Fine, 837 F.2d 1071,
1074 (Fed. Cir. 1988). In this case, Appellants have demonstrated reversible
error in the Examiner's findings that the cited prior art teaches the claim
limitation "if the load variable exceeds a load threshold for a predefined time
period (DT) or a predefined number of wiping cycles." Accordingly, we
reverse the rejections of claims 1 and 11, and the claims which depend from
them.
Claims 20 and 21
Claims 20 recites "the control unit ( 6) reduces the wiping frequency
of the wiper arm ( 4) from a first wiping frequency (WH 1) to a second
reduced wiping frequency (WH2) ifthe load variable exceeds a load
threshold, and sets the wiper arm ( 4) to the first wiping frequency (WHl)
after a second load threshold (LS2) has been undershot, immediately or in
accordance with a predefined continuous rise. "5 Appellants argue that
neither Savage nor Buchannan teach this limitation (Appeal Br. 1 O; Reply
Br. 3-46).
The Examiner finds that:
"Savage discloses the control unit reduces the wiping frequency
to the second wiping frequency (fmin) in accordance with a
continuous decrease in the wiping frequency. In addition sets
the first wiping frequency (fs) after a second load threshold has
5 Method claim 21 has an analogous limitation.
6 We note that the Reply Brief does not include page numbers. We have
assumed the page with the Appeal caption on it is page 1, and numbered
consecutively from there.
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Appeal2014-002525
Application 12/305,505
been undershot in accordance with a predefined continuous rise
(i.e. load increases, see pages 9-11 ). In addition Savage
discloses in page 9, lines 30-34 that frequency (fs) is
maintained at a user selected frequency whenever the current is
below a threshold value ls. Therefore, returning to the first
wiping frequency after a second load threshold has been
undershot is taught by Savage"
(Ans. 4).
Appellants contend that Savage discloses that the frequency decreases
linearly with the measured current, until the current rises above a certain
threshold ls, at which time the frequency is held at a specific level fmin
(Reply Br. 3, citing Savage Fig. 12). Appellants argue that Savage teaches
that if the current is above ls and then drops back down below ls, the
frequency does not reset to the first wiping frequency, but simply rises
proportionally to the rise above ls (Reply Br. 3--4).
We agree with Appellants that Savage does not teach the claim
limitation in question. In particular; while Savage does teach that there is a
frequency minimum which is not breached even if the load variable exceeds
a load threshold (i.e., if the current is below a threshold value ls), Savage
does not teach that the frequency resets to the initial wiping frequency when
a second load threshold (LS2) has been undershot (i.e. if the current is above
a certain value). That is, claim 20 recites that the frequency "snaps back" to
a first value (i.e. does not vary continuously) when a second load threshold
has been undershot, while Savage teaches that the frequency varies directly
with the changes in current/load variable.
Appellants have demonstrated reversible error in the Examiner's
findings which support the obviousness rejection. Accordingly, we reverse
the rejections of claims 20 and 21.
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Appeal2014-002525
Application 12/305,505
CONCLUSION
We REVERSE the rejection of claims 1--4, 7-9, 11-14, and 17-21.
REVERSED
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