Ex Parte Breed

Board of Patent Appeals and Interferences

Jun 16, 2009

10331060 (B.P.A.I. Jun. 16, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte DAVID S. BREED
____________________

Appeal 2008-003321
Application 10/331,060
Technology Center 3600
____________________

Decided:1 June 16, 2009
____________________

Before: WILLIAM F. PATE, III, JENNIFER D. BAHR
and STEVEN D.A. McCARTHY, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge.

DECISION ON APPEAL

1 The two month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304 (2008), begins to run from the
Decided Date shown on this page of the decision. The time period does not
run from the Mail Date (paper delivery) or the Notification Date (electronic
delivery).

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STATEMENT OF THE CASE 1
The Appellant appeals under 35 U.S.C. § 134 (2002) from the final 2
rejection of claims 2, 4-7, 10-12, 14-21, 31 and 33-38 under 35 U.S.C. 3
§ 103(a) (2002) as being unpatentable over Montaron (US 4,381,829, issued 4
May 3, 1983) and Rhee (US 5,194,755, issued Mar. 16, 1993); and the final 5
rejection of claim 13 under § 103(a) as being unpatentable over Montaron, 6
Rhee and Marko (US 5,041,976, issued Aug. 20, 1991). We have 7
jurisdiction under 35 U.S.C. § 6(b) (2002). 8
We sustain the rejection of claims 2, 4-7, 10-21, 31, 33, 35, 36 and 38 9
under § 103(a). We do not sustain the rejections of claims 34 and 37 under 10
§ 103(a). 11
Claim 2 is typical of the claims on appeal: 12
13
2. A vehicle having a portion defined as 14
a crush zone which is designed to crush upon a 15
crash involving the vehicle and an occupant 16
restraint device; comprising: 17
a crash sensor arrangement for determining 18
whether the crash involving the vehicle requires 19
deployment of the occupant restraint device, said 20
arrangement comprising: 21
a first electronic crash sensor mounted 22
in the crush zone of the vehicle and structured and 23
arranged to measure a reaction of the crush zone to 24
the crash and to output a signal representative of 25
the measurements, said first electronic sensor 26
comprising an accelerometer or a gyroscope and 27
providing the signal based on data from said 28
accelerometer or gyroscope, 29
a processor coupled to said first 30
electronic sensor and arranged to process the 31
signal from said first sensor and determine whether 32
the occupant restraint device should be deployed, 33
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a second electronic crash sensor 1
mounted outside of the crush zone of the vehicle 2
and structured and arranged to measure a reaction 3
of the vehicle by means other than crush of the 4
crush zone of the vehicle, 5
said first and second electronic sensors 6
inputting signals to said processor and said 7
processor being arranged to determine whether the 8
occupant restraint device should be deployed using 9
an algorithm and data from at least one of the first 10
and second electronic sensors. 11
12
ISSUES 13
Claims 17-21 depend ultimately from claim 16. The Appellant does 14
not direct any argument against the rejection of claims 17-21 under § 103(a) 15
that is not also directed against the rejection of claim 16. (App. Br. 4-5). 16
Although claim 31 is independent, the Appellant does not direct any 17
argument against the rejection of claim 31 under § 103(a) that is not also 18
directed against the rejection of claim 16. (Id.) Therefore, the Appellant 19
argues claims 16-21 and 31 as a group. Claim 16 is representative of this 20
group. See 37 C.F.R. § 41.37(c)(1)(vii) (2008). 21
Montaron discloses a collision detector having several accelerometers, 22
a microcomputer and safety devices such as air bags and safety belts. 23
(Montaron, col. 1, ll. 61-64 and col. 3, l. 61 – col. 4, l. 2). The Examiner 24
concludes that Rhee would have provided one of ordinary skill in the art 25
reason to modify Montaron’s collision detector to include a crash sensor 26
mounted in the crush zone as recited in claim 16. (Ans. 4). The Appellant 27
contends that Rhee discloses, at most, mounting an acceleration-actuated 28
switch mounted in the crush zone, and that Rhee does not make up for the 29
deficiencies in the teachings of Montaron. (App. Br. 5). The Appellant 30
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argues that one of ordinary skill in the art would not have considered it 1
possible to mount accelerometers generating measurements of acceleration 2
in the crush zone because such accelerometers were not deemed sufficiently 3
rugged to continue functioning in the crush zone during a crash. (Id.) 4
Claims 4-7, 33, 35, 36 and 38 depend ultimately from claim 2. 5
Claims 11, 12, 14 and 15 depend ultimately from claim 10. The Appellant 6
explicitly argues claims 2 and 10 together (see, e.g., App. Br. 6), and does 7
not direct any argument against the rejection of claim 4-7, 11, 12, 14, 15, 33, 8
35, 36 or 38 under § 103(a) that is not also directed against the rejection of 9
claims 2 and 10 (App. Br. 5-6). Therefore, the Appellant argues claims 2, 4-10
7, 10-12, 14, 15, 33, 35, 36 and 38 as a group. Claim 2 is representative of 11
this group. See § 41.37(c)(1)(vii). 12
The Examiner concludes that Rhee would have provided one of 13
ordinary skill in the art reason to modify Montaron’s collision detector to 14
include both a first crash sensor mounted in the crush zone and a second 15
crash sensor mounted outside the crush zone. (Ans. 4). In addition to 16
repeating the arguments directed against the rejection of claims 1-21 and 31, 17
the Appellant contends that Montaron and Rhee would not have suggested a 18
crush-zone-mounted, accelerometer-based crash sensor structured and 19
arranged to measure a reaction of the crush zone to a crash and output a 20
signal representative of the measurements in a common system with a non-21
crush-zone-mounted, accelerometer-based crash sensor. (App. Br. 6). 22
The issues raised by this appeal include: 23
Has the Appellant shown that the Examiner failed to 24
articulate reasoning with some rational underpinning to support 25
the conclusion that Montaron and Rhee would have provided 26
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one of ordinary skill in the art reason to modify Montaron’s 1
collision detector to include both a first crash sensor mounted in 2
the crush zone, and a second crash sensor mounted outside the 3
crush zone, the first crash sensor structured and arranged to 4
measure a reaction of the crush zone to a crash and to output a 5
signal representative of the measurements? 6
The Appellant argues the rejections of claims 34 and 37 separately. 7
The Appellant contends that Montaron fails to disclose a collision detector 8
including a first crash sensor mounted in the crush zone, and a second crash 9
sensor mounted outside the crush zone, which provide information to a 10
processor simultaneously. The Appellant further contends that Rhee does 11
not make up this deficiency. (App. Br. 7). 12
The issues raised by this appeal also include: 13
Has the Appellant shown that the Examiner failed to 14
articulate reasoning with some rational underpinning to support 15
the conclusion that Montaron and Rhee would have provided 16
one of ordinary skill in the art reason to modify Montaron’s 17
collision detector to include both a first crash sensor mounted in 18
the crush zone and a second crash sensor mounted outside the 19
crush zone simultaneously providing information to a 20
processor? 21
Finally, the Appellant argues the rejection of claim 13 separately. The 22
Examiner concludes that Marko would have suggested further modifying 23
Montaron’s collision detector, as already modified in view of Rhee, to use a 24
pattern recognition algorithm to determine whether to deploy an occupant 25
restraint device to increase the speed and accuracy of the crash detection. 26
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(Ans. 4). The Appellant points out that Marko does not disclose a processor 1
which determines whether to deploy an occupant restraint device using data 2
from first crash sensor mounted in the crush zone, and a second crash sensor 3
mounted outside the crush zone. The Appellant contends that the teachings 4
of Montaron, Rhee and Marko would not have provided one of ordinary skill 5
in the art reason to arrive at the subject matter of claim 13. (App. Br. 8). 6
The issues raised by this appeal also include: 7
Has the Appellant shown that the Examiner failed to 8
articulate reasoning with some rational underpinning to support 9
the conclusion that Montaron, Rhee and Marko would have 10
provided one of ordinary skill in the art reason to modify 11
Montaron’s collision detector to include a processor embodying 12
a pattern recognition algorithm to determine whether to deploy 13
an occupant restraint device? 14
15
FINDINGS OF FACT 16
The record supports the following findings of fact (“FF”) by a 17
preponderance of the evidence. 18
1. The accelerometers in Montaron’s collision detector are 19
coupled to the microprocessor through a multiplexor which transmits the 20
outputs of the accelerometers to the microprocessor sequentially. 21
(Montaron, col. 3, ll. 35-36 and 42-44). The multiplexor appears to transmit 22
the outputs of the accelerometers to the microprocessor one-at-a-time. (See 23
Montaron, col. 3, ll. 40-44 (disclosing that “[t]he output” of the multiplexor 24
communicates with an analog-to-digital converter which conveys digitized 25
accelerometer signals to the processor) and Fig. 1). 26
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2. The microprocessor executes a program which acquires data 1
furnished by the accelerometers, compares the accelerometer data to certain 2
thresholds fixed by the program and, in cases where a threshold is exceeded, 3
actuates an alarm procedure. (Montaron, col. 4, ll. 65-68; col. 5, ll. 3-4 and 4
9-12). 5
3. During an alarm procedure, the microprocessor reads the 6
accelerometer data; executes a computation starting with the present 7
accelerometer data and previous data registered in the processor’s memory; 8
computes the elapsed time after the triggering of the alarm procedure; 9
compares the calculated parameters to certain levels fixed by the program; 10
and according to the result of the comparison, triggers the safety devices. 11
(Montaron, col. 5, ll. 38-51). 12
4. Montaron discloses that “[t]he accelerometers 20 are distributed 13
within the vehicle interior to measure [the] condition of the vehicle’s 14
essential parts.” (Montaron, col. 3, ll. 51-53). 15
5. Rhee discloses that it was known to deploy parallel crash 16
sensors such as accelerometers in “the forward area of a vehicle.” (Rhee, 17
col. 1, ll. 8-15). Rhee uses the phrase “the forward area of a vehicle” to refer 18
to a crush zone of the vehicle forward of the passenger compartment. (See 19
Rhee, col. 2, ll. 55-59). 20
6. Rhee discloses a triggering system which applies electrical 21
power to an electrical ignitor of an airbag positioned in the passenger 22
compartment of a motor vehicle. (Rhee, col. 1, ll. 33-37). Rhee’s triggering 23
system includes an accelerometer positioned within the passenger 24
compartment. (Rhee, col. 2, ll. 34-40). Rhee’s triggering system also 25
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includes two accelerometers positioned forward of the passenger 1
compartment in the crush zone of the vehicle. (Rhee, col. 2, ll. 55-59). 2
7. Rhee discloses as one object of Rhee’s triggering system the 3
provision of two redundant firing paths for the electrical ignitor for the air 4
bag. (Rhee, col. 1, ll. 25-32). More specifically, Rhee teaches providing a 5
redundant firing path through the accelerometer mounted in the passenger 6
compartment to a passenger compartment ground. Rhee teaches that this 7
redundant firing path will enable the airbag to deploy if the accelerometers 8
mounted in the crush zone are disabled such as by destruction of their 9
vehicle ground interconnections within the crush zone. (Rhee, col. 4, ll. 60-10
63). 11
8. Marko discloses the use of a pattern recognition system to 12
produce a diagnostic system which can be trained to correlate signatures of 13
improper engine performance with causes of faults. (Marko, col. 5, ll. 3-8). 14
The system is readily transferable to systems on-board an electronic engine 15
control for continuous diagnosis of engine operation in a vehicle. (Marko, 16
col. 11, ll. 65-68). 17
9. Marko describes known computerized engine control fault 18
diagnosis systems. For example, Marko describes the use of a data 19
acquisition system to provide engine operating information to a computer. 20
Marko further describes the use of the computer to apply specific algorithms 21
to (that is, to perform calculation using) measured values and to compare 22
measured values to reference values in order to find discrepancies which 23
indicate possible faults. (Marko, col. 1, ll. 47-60). 24
10. After describing these known system, Marko declares that one 25
object of Marko’s method employing a trainable pattern recognition system 26
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is to provide accurate results when detecting faults in complicated electronic 1
control systems. (Marko, col. 3, ll. 7-10 and 21-25). 2
3
PRINCIPLES OF LAW 4
A claim is unpatentable for obviousness under § 103(a) if “the 5
differences between the subject matter sought to be patented and the prior art 6
are such that the subject matter as a whole would have been obvious at the 7
time the invention was made to a person having ordinary skill in the art to 8
which said subject matter pertains.” Id. In Graham v. John Deere Co., 383 9
U.S. 1 (1966), the Supreme Court set out factors to be considered in 10
determining whether claimed subject matter would have been obvious: 11
12
Under § 103, the scope and content of the prior art 13
are to be determined; differences between the prior 14
art and the claims at issue are to be ascertained; 15
and the level of ordinary skill in the pertinent art 16
resolved. Against this background the obviousness 17
or nonobviousness of the subject matter is 18
determined. 19
20
Id., 383 U.S. at 17. 21
The Appellant does not rely on any objective evidence of patentability 22
in this appeal. (See App. Br. 15). Therefore, the Appellant’s burden in 23
attacking the Examiner’s rejections under § 103(a) is to show that the 24
Examiner has identified insufficient evidence to support a conclusion of 25
prima facie obviousness. In re Kahn, 441 F.3d 977, 985-86 (Fed. Cir. 2006) 26
(citing In re Rouffet, 149 F.3d 1350, 1355 (Fed. Cir. 1998)). “[W]hen a 27
patent claims a structure already known in the prior art that is altered by the 28
mere substitution of one element for another known in the field, the 29
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combination must do more than yield a predictable result.” KSR Int’l Co. v. 1
Teleflex, Inc., 550 U.S. 398, 416 (2007). Likewise, “if a technique has been 2
used to improve one device, and a person of ordinary skill in the art would 3
recognize that it would improve similar devices in the same way, using the 4
technique is obvious unless its application is beyond his or her skill.” Id. at 5
417. That said, “rejections on obviousness grounds cannot be sustained by 6
mere conclusory statements; instead, there must be some articulated 7
reasoning with some rational underpinning to support the legal conclusion of 8
obviousness.” Kahn, 441 F.3d at 988. 9
10
ANALYSIS 11
Montaron discloses a collision detector or crash sensor arrangement 12
including electronic crash sensors mounted outside of the crush zone of the 13
vehicle. (FF 4). Montaron’s crash sensors are accelerometers (FF 1 and 4) 14
structured and arranged to measure a reaction of the vehicle by means other 15
than crush of the crush zone of the vehicle. Montaron’s crash sensors output 16
to a processor signals including data from the accelerometers that are 17
representative of the reaction of the vehicle. (FF 1). Montaron’s processor 18
is arranged to process the signals from the crash sensors. Montaron’s 19
process also is arranged to determine whether an occupant restraint device 20
should be deployed using an algorithm and data from the crash sensors. (FF 21
2-3). 22
The crash sensor arrangement recited in representative claim 2 differs 23
from Montaron’s collision detector, and the method of representative claim 24
16 differs from the method in which Montaron’s collision detector 25
determines whether a crash requires deployment of an occupant restraint 26
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device, in that Montaron does not disclose: a first electronic crash sensor 1
including an accelerometer mounted in the crush zone of the vehicle rather 2
than in the vehicle interior; or a first electronic crash sensor which measures 3
acceleration of a part of the crush zone on which the accelerometer is 4
mounted as a reaction of the crush zone to a crash. Rhee discloses that it 5
was known to deploy parallel crash sensors such as accelerometers in the 6
forward crush zone of a vehicle, or to combine accelerometers deployed in 7
the forward crush zone with sensors deployed in the vehicle interior away 8
from the crush zone. (FF 5 and 6). As the Examiner concludes (see Ans. 4), 9
it would have been obvious simply to substitute one or more accelerometers 10
of the type described by Montaron, mounted in the vehicle crush zone, for 11
one or more of the accelerometers which Montaron describes as being 12
deployed in the vehicle interior. 13
The substitution proposed by the Examiner would have resulted in a 14
combination of a first electronic crash sensor including an accelerometer 15
mounted in the crush zone and a second electronic crash sensor mounted 16
outside the crush zone. The first electronic crash sensors necessarily would 17
have measured acceleration of the parts of the crush zone on which the 18
accelerometer were mounted as reactions to a crash. Although the 19
substitution would have required modifying the algorithm used by the 20
processor to determine whether the occupant restraint device should be 21
deployed, the Appellant presents no persuasive argument as to why the 22
modification necessary to produce a working algorithm would have been 23
beyond the level of ordinary skill in the art. 24
The Appellant appears to argue that such a substitution would not 25
have been simple or obvious because one of ordinary skill in the art would 26
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have expected an accelerometer of the type described by Montaron to fail 1
during a crash if mounted in the crush zone. (App. Br. 5). This argument is 2
entitled to little weight because the Appellant offers no evidence probative 3
of the level of ordinary skill in the art. The Appellant’s argument itself is 4
not evidence. See In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997). 5
While Rhee provides some oblique support for finding that one of ordinary 6
skill in the art would have recognized a possibility of a crash-zone-mounted 7
accelerometer failing during a crash (see FF 7), neither Rhee nor Montaron 8
nor Marko provides a basis for finding that one of ordinary skill in the art 9
would have recognized an accelerometer of the type disclosed by Montaron 10
to be more vulnerable to failure during a crash than the accelerometers 11
which Rhee describes mounting in the forward crush zone. The Appellant’s 12
arguments fail to show error in the conclusion that it would have been 13
obvious to mount accelerometers capable of performing measurements both 14
in the crush zone and outside the crush zone. 15
On the other hand, Montaron’s accelerometers do not provide 16
information to the processor simultaneously as recited in claims 34 and 37. 17
Montaron discloses coupling the accelerometers to the microprocessor 18
through a multiplexor which transmits the outputs of the accelerometers to 19
the microprocessor sequentially. (FF 1). Although, as the Examiner points 20
out (see Ans. 7), Montaron discloses that the processor acquires data 21
furnished by the accelerometers (FF 2), Montaron does not disclose that the 22
processor acquires data from the accelerometers simultaneously. 23
Rhee does not make up this deficiency in the teachings of Montaron. 24
As the Examiner points out (see Ans. 7), Rhee discloses providing two 25
redundant firing paths for the electrical ignitor of an air bag, one path 26
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through an accelerometer mounted in the passenger compartment and 1
another path through both this accelerometer and another accelerometer 2
mounted in the forward crush zone. (FF 7). It is not clear why this 3
disclosure would have provided one of ordinary skill in the art reason to 4
bypass the multiplexor and connect the accelerometer outputs directly to the 5
processor, however. 6
The Appellant in contesting the rejection of claim 13 attacks the 7
disclosure of Marko individually for failing to describe a processor . Since 8
the teachings of Montaron and Rhee collectively provide rational 9
underpinning to support the Examiner’s conclusion that a vehicle including a 10
crash sensor having these features would have been obvious, the Appellant’s 11
criticism of Marko is not persuasive of error in the rejection of claim 13. 12
See In re Keller, 642 F.2d 413, 426 (CCPA 1981)(“[O]ne cannot show non-13
obviousness by attacking references individually where, as here, the 14
rejections are based on combinations of references.”). 15
Montaron describes a microprocessor which determines whether to 16
trigger a safety device by reading accelerometer data, applying an algorithm 17
to the data to calculate parameters and comparing the calculated parameters 18
to certain levels fixed by the program. (FF 3). Marko criticizes known 19
systems which diagnose electronic control systems by acquiring data, 20
applying specific algorithms to the data and comparing either the data or 21
values derived from the data to reference values. (FF 9). Marko teaches that 22
Marko’s diagnostic method employing a pattern recognition system is an 23
improvement over such known systems in that Marko’s system provides 24
accurate results when detecting faults in complicated electronic control 25
systems. (FF 10). The teachings of Montaron, Rhee and Marko would have 26
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provided one of ordinary skill in the art reason to similarly improve 1
Montaron’s processor to embody a pattern recognition algorithm to 2
determine whether to trigger the safety device to provide, as the Examiner 3
reasons (see Ans. 4), increased accuracy in determining whether to trigger 4
the safety device. 5
The Appellant does not explain why the reasoning articulated by the 6
Examiner might be deficient. (See App. Br. 8). Neither does the Appellant 7
provide any reason why one of ordinary skill in the art might not have had a 8
reasonable expectation that a pattern recognition algorithm could be 9
embodied successfully in the processor of a collision detection system. (See 10
id.) 11
12
CONCLUSIONS 13
The Appellant has not shown that the Examiner failed to articulate 14
reasoning with some rational underpinning to support the conclusion that 15
Montaron and Rhee would have provided one of ordinary skill in the art 16
reason to modify Montaron’s collision detector to include both a first crash 17
sensor mounted in the crush zone and a second crash sensor mounted outside 18
the crush zone, the first crash sensor structured and arranged to measure a 19
reaction of the crush zone to a crash and to output a signal representative of 20
the measurements. Therefore, the Appellant has not shown that the 21
Examiner erred in rejecting claims 16-21 and 31 under § 103(a) as being 22
unpatentable over Montaron and Rhee. In addition, the Appellant has not 23
shown that the Examiner erred in rejecting claims 2, 4-7, 10-12, 14, 15, 33, 24
35, 36 and 38 under § 103(a) as being unpatentable over Montaron and 25
Rhee. 26
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The Appellant has shown that the Examiner failed to articulate 1
reasoning with some rational underpinning to support the conclusion that 2
Montaron and Rhee would have provided one of ordinary skill in the art 3
reason to modify Montaron’s collision detector to include both a first crash 4
sensor mounted in the crush zone and a second crash sensor mounted outside 5
the crush zone providing information to a processor simultaneously. 6
Therefore, the Appellant has shown that the Examiner erred in rejecting 7
claims 34 and 37 under § 103(a) as being unpatentable over Montaron and 8
Rhee. 9
The Appellant has not shown that the Examiner failed to articulate 10
reasoning with some rational underpinning to support the conclusion that 11
Montaron, Rhee and Marko would have provided one of ordinary skill in the 12
art reason to modify Montaron’s collision detector to include a processor 13
embodying a pattern recognition algorithm to determine whether to deploy 14
an occupant restraint device. Therefore, the Appellant has not shown that 15
the Examiner erred in rejecting claim 13 under § 103(a) as being 16
unpatentable over Montaron, Rhee and Marko. 17
18
DECISION 19
The Examiner’s rejections of claims 2, 4-7, 10-21, 31, 33, 35, 36 and 20
38 are AFFIRMED. 21
The Examiner’s rejections of claims 34 and 37 are REVERSED. 22
23
AFFIRMED-IN-PART 24
25
26
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mls 1
2
BRIAN ROFFE, ESQ 3
11 SUNRISE PLAZA, SUITE 303 4
VALLEY STREAM, NY 11580-6111 5