Ex Parte Crombez et al

Patent Trial and Appeal Board

May 15, 2013

11620778 (P.T.A.B. May. 15, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte DALE CROMBEZ, DANIEL GABOR,
PETER WORREL, and WILLIAM DAVID TREHARNE

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Appeal 2011-000065
Application 11/620,778
Technology Center 3600
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Before JOSIAH C. COCKS, MICHAEL J. FITZPATRICK, and
SCOTT E. KAMHOLZ, Administrative Patent Judges.

FITZPATRICK, Administrative Patent Judge.

DECISION ON APPEAL
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STATEMENT OF THE CASE
Dale Crombez et al. (“Appellants”) appeal under 35 U.S.C. § 134(a)
from a decision finally rejecting claims 1-20. We have jurisdiction under 35
U.S.C. § 6(b)(1).
We affirm.

The Claimed Subject Matter
According to Appellants, the claimed invention “is related to a
method and system for providing multiple sources for boosting service
brakes in a hybrid motor vehicle, such as a hybrid electric vehicle or a
hybrid hydraulic vehicle.” Spec. 1, para. 1. Claim 11, reproduced below, is
illustrative of the claimed subject matter.
11. A brake system for a hybrid motor vehicle, comprising:

a brake boosting system powered primarily by an internal
combustion engine;

an auxiliary brake boosting device; and

a system controller for monitoring the value of at least
one operating parameter indicative of the output of said
auxiliary brake boosting device, with said system controller
comparing the value of said monitored operating parameter
with a predetermined range for said value, and in the event that
the value of said monitored operating parameter lies outside
said predetermined range, running said internal combustion
engine to provide a desired level of brake boost.

Clms. Appx., App. Br. 17.

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Evidence
The Examiner relies upon the following prior art references:
Lexen
Martyniuk
Earle
Nakamura
Crombez

US 4,815,334
US 5,195,606
US 5,515,676
US 6,354,672 B1
US 6,443,535 B1
Mar. 28, 1989
Mar. 23, 1993
May 14, 1996
Mar. 12, 2002
Sep. 3, 2002

Rejections
The Examiner makes the following rejections:
I. Claims 1, 6, 8, 10, 11, 16, 18, and 19 are rejected under 35 U.S.C. §
102(b) as anticipated by Crombez.
II. Claims 4, 5, 9, 14, 15, and 20 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Crombez and Nakamura.
III. Claims 2 and 12 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Crombez and Earle.
IV. Claims 3 and 13 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Crombez and Martyniuk.
V. Claims 7 and 17 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Crombez and Lexen.

OPINION
The Anticipation Rejection
The Examiner rejected claims 1, 6, 8, 10, 11, 16, 18, and 19 as
anticipated by Crombez. Appellants argue the claims as a group. App.
Br. 10. In accordance with 37 C.F.R. § 41.37(c)(1)(vii) (2011), we select
independent claim 11 as representative of the group. Therefore, we will
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treat claims 1, 6, 8, 10, 16, 18, and 19 as standing or falling with
representative claim 11.
Independent claim 11 requires, in relevant part, “an auxiliary brake
boosting device[.]” Clms. Appx., App. Br. 17. The Examiner found that the
vacuum booster (14) in Crombez satisfied this limitation. Final Rej. 3;
Ans. 4, 13; see also Crombez Fig. 1, ref. 14.
Appellants argue that claim 11 is not anticipated by Crombez
“[b]ecause Crombez does not disclose an auxiliary, non-engine driven brake
booster as described and claimed by Appellants[.]” App. Br. 10 (emphasis
added). Appellants’ argument is not commensurate with the scope of the
claim, which more broadly recites “an auxiliary brake boosting device” and
does not specify that it be non-engine driven. Clms. Appx., App. Br. 17.
Appellants further argue, however, that “the term ‘auxiliary brake
boosting device’ is defined as either an electrodrive vacuum pump, or an
electrodrive air compressor, or an electro drive hydraulic pump, or a
hydraulically driven vacuum pump; none of these devices is driven by the
engine.” App. Br. 10 (emphasis added). But, Appellants do not provide any
citation to the specification to support the purported definition. App. Br. 10.
We have reviewed the specification and do not observe any clear
definition for the term. See Thorner v. Sony Computer Entm’t Am. LLC, 669
F.3d 1362, 1365 (Fed. Cir. 2012) (“To act as its own lexicographer, a
patentee must ‘clearly set forth a definition of the disputed claim term’ other
than its plain and ordinary meaning.”) (quoting CCS Fitness, Inc. v.
Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002)). Rather, the
application states that “an auxiliary brake boosting device according to the
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present invention may include an electrodrive air compressor or hydraulic
pump or vacuum pump, or a hydraulically driven vacuum pump.” Spec. 2,
para. 6 (emphasis added). This is not a definition for the claimed auxiliary
brake boosting device; it is merely a non-exclusive list of embodiments. See
Thorner, 669 F.3d at 1366. (“We do not read limitations from the
specification into claims; we do not redefine words.”)
As the Appellants did not act as their own lexicographers, we give the
term its ordinary and customary meaning. See Thorner, 669 F.3d at 1365.
In that regard, we construe “auxiliary brake boosting device” as a device
providing brake boosting that is auxiliary or supplemental and includes such
devices regardless of whether they are engine driven. We agree with the
Examiner that vacuum booster (14) is viewed reasonably as an auxiliary
brake boosting device. Appellants’ arguments regarding the vacuum booster
(14) of Crombez being engine driven (App. Br. 10) do not apprise us of any
error in the rejection.
For the foregoing reasons, we sustain the anticipation rejection of
claims 1, 6, 8, 10, 11, 16, 18, and 19.
The Obviousness Rejections
The Examiner rejected the remaining claims as unpatentable
principally over Crombez as follows:
claims 4, 5, 9, 14, 15, and 20 over Crombez and Nakamura;
claims 2 and 12 over Crombez and Earle;
claims 3 and 13 over Crombez and Martyniuk; and
claims 7 and 17 over Crombez and Lexen.

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Appellants argue against these obviousness rejections on the same
unpersuasive basis that they argue against the anticipation rejection. See,
e.g., App Br. 11 (“As noted above, Crombez lacks any form of auxiliary
brake booster.”); App Br. 12 (“This rejection is subject to the same infirmity
as the previous rejection[.]”). But, as explained above, the Examiner
correctly found that Crombez does disclose an “auxiliary brake boosting
device” as that term is used in Appellants’ Specification.
Appellants conclude that “neither Crombez, nor [the respective
secondary reference], whether taken singly, or in combination, either teach
or suggest monitoring an auxiliary brake boosting device and restarting an
engine if the auxiliary device has insufficient output.” App. Br. 12, 13; see
also App. Br. 11 (similar statement). We disagree. Crombez discloses that
the auxiliary brake boosting device (i.e., vacuum booster (14)) is monitored,
and vacuum source (12), which is an engine (col. 2, ll. 55-57), is started if
the vacuum booster has insufficient output. Col. 4, ll. 14-22; see also Ans. 4
(citing the same).
For the foregoing reasons, we sustain the obviousness rejections of
claims 2-5, 9, 12-15, and 20.
DECISION
The rejection of claims 1-20 is affirmed.
No time period for taking action in connection with this appeal may
be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

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