Ex Parte Dudar et al

Patent Trial and Appeal Board

Jul 24, 2018

14589122 (P.T.A.B. Jul. 24, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/589,122 01/05/2015
46442 7590 07/26/2018
CARLSON, GASKEY & OLDS, P.C./Ford
400 W. MAPLE RD.
SUITE 350
BIRMINGHAM, MI 48009
FIRST NAMED INVENTOR
AedM. Dudar
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.
83495573;67186-155
PUSl
CONFIRMATION NO.
9869
EXAMINER
BAILLARGEON, JOSEPH M
ART UNIT PAPER NUMBER
3742
NOTIFICATION DATE DELIVERY MODE
07/26/2018 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):
cgolaw@yahoo.com
ptodocket@cgolaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte AED M. DUDAR and MAHMOUD YOUSEF GHANNAM
Appeal2017-011633 1
Application 14/589,1222
Technology Center 3700
Before NINA L. MEDLOCK, BART A. GERSTENBLITH, and
KENNETH G. SCHOPPER, Administrative Patent Judges.
SCHOPPER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the final rejection of
claims 1-9 and 11-21. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 Our decision references the Appeal Brief ("Appeal Br.," filed May 15,
2017), the Reply Brief ("Reply Br.," filed July 19, 2017), the Examiner's
Answer ("Ans.," mailed June 30, 2017), and the Final Office Action ("Final
Act.," mailed Jan. 13, 2017).
2 According to Appellants, the real party in interest is Ford Global
Technologies, which ultimately is owned by Ford Motor Company. Appeal
Br. 1.
Appeal 2017-011633
Application 14/589,122
BACKGROUND
According to Appellants, the "disclosure is directed toward selectively
heating side windows of a vehicle and, more particularly, to selectively
heating side windows to melt ice, to inhibit ice formation, or both."
Spec. ,r 1.
CLAIMS
Claims 1, 13, and 21 are the independent claims on appeal. Claim 1 is
illustrative of the appealed claims and recites:
1. An assembly, comprising:
a side window moveable between a first position and a
second position;
a heating element; and
a control module that commands the heating element to
heat the side window prior to a drive cycle and during both a first
and second wake-up of the control module, the heating element
generating more heat when the side window is in the first
position than when the side window is in the second position.
Appeal Br. 9.
REJECTIONS
1. The Examiner rejects claims 1-3, 6-9, 3 11, 13-18, and 20 under
35 U.S.C. § I03(a) as unpatentable over Gipson4 in view ofHammons. 5
3 Although the Final Action indicates that dependent claim 9 is rejected over
Gipson alone, the Examiner's Answer makes clear that claim 9 should be
included in the rejection over Gipson and Hammons, and not rejected over
Gipson alone, based on its dependency from claim 1. See Ans. 14.
4 Gipson et al., US 2010/0146859 Al, pub. June 17, 2010.
5 Hammons, US 5,791,407, iss. Aug. 11, 1998.
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Application 14/589,122
2. The Examiner rejects claims 4 and 5 under 35 U.S.C. § I03(a) as
unpatentable over Gipson in view of Hammons and Renke. 6
3. The Examiner rejects claims 12 and 19 under 35 U.S.C. § I03(a) as
unpatentable over Gipson in view of Hammons and Han. 7
4. The Examiner rejects claim 21 under 35 U.S.C. § I03(a) as unpatentable
over Gipson in view of Oskorep. 8
DISCUSSION
Obviousness over Gipson and Hammons
Claims 1-3, 6, 7, 9, and 11
With respect to claim 1, the Examiner finds that Gipson discloses an
assembly including a side window and a heating element that generates more
heat when the side window is in a first position and less heat when that
window is in a second position. Final Act. 2-3 ( citing Gipson Figs. 1, 3, 7).
The Examiner acknowledges that Gipson does not disclose a control module
that commands the heating element to heat the side window prior to a drive
cycle and during first and second wake-ups of the control module. Id. at 3.
However, the Examiner finds that Hammons teaches a control module that is
capable of performing this function. Id. Specifically, the Examiner finds
that Hammons teaches a method by which a person could schedule a wake-
up time and, after that wake-up time occurred, could subsequently not
initiate a drive cycle and instead schedule a subsequent wake-up time for the
control module to heat the heating element. Id. (citing Hammons col. 3,
11. 61-63). The Examiner concludes that incorporating such a control
6 Renke et al., US 2009/0050614 Al, pub. Feb. 26, 2009.
7 Han et al., US 2014/0217194 Al, pub. Aug. 7, 2014.
8 Oskorep, US 2004/0021575 Al, pub. Feb. 5, 2004.
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Application 14/589,122
module into Gipson's assembly would have been obvious because "it would
be advantageous to be able to schedule your car engine to tum on in order to
warm the windows to prevent the operator from having to go [ out ]side in the
harsh environment and scrape the windows of ice." Id. ( citing Hammons
col. 1, 11. 19-23).
As discussed below, we are not persuaded of reversible error with
respect to the rejection of claim 1.
Appellants first argue that Hammons does not teach waking up a
control module and only teaches entering a start time. Appeal Br. 4. We are
not persuaded by this argument for the reasons provided by the Examiner.
See Ans. 3--4. Specifically, the Specification uses "wake-up" in the same
sense as Hammons uses the term "warm start," i.e., wake-up of the control
module occurs when the control module begins to condition the vehicle.
See, e.g., Spec. ,r,r 38, 64; see also Hammons col. 3, 11. 60-65. The
Specification does not, otherwise, use the term wake-up and we agree with
the Examiner that the broadest reasonable interpretation of the phrase
"wake-up of the control module" would include the initiation of the "warm
start" in Hammons.
Next, Appellants argue that the Examiner erred in determining that
claim 1 recites a method of use. Appeal Br. 4. Thus, Appellants indicate
that the Examiner's reliance on the fact that Hammons's device is capable of
use, as claimed, is in error. See Final Act. 3. We disagree. Although the
claims are directed to an assembly with a control module and not a method
of use, the claimed control module is not defined by any particular structure
and is instead only claimed in terms of its function, i.e., the control module
performs the function of commanding the heating element, which occurs
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Application 14/589,122
prior to a drive cycle and during both first and second wake-ups. We agree
with the Examiner that Hammons possesses the structure claimed, i.e., a
control module. Further, the Examiner has identified a scenario in which
Hammons's control module would perform the function claimed.
Specifically, the Examiner asserts that the controller could be scheduled to
wake-up at a specific time, the controller could wake up at that time and
being the warming process, and then the process could be stopped and
scheduled to begin anew before any drive cycle occurs. See Final Act. 3.
Put more succinctly, Hammons does not require that a drive cycle must
occur before another warm start cycle can occur. Thus, we agree with the
Examiner that Hammons's controller is capable of performing the function
claimed.
Appellants also argue that the Examiner has not provided a clear
articulation of why the claimed invention would have been obvious. Appeal
Br. 4. In support, Appellants assert that there is no reason to provide the
function that allows for multiple wake-ups of the controller because the
windows would be heated and ice removed during the first wake-up of the
controller and multiple wakeups would not be required. We disagree. One
of ordinary skill in the art would recognize the benefit of allowing for
multiple wakeups prior to a drive cycle as can be seen from the scenario
posited by the Examiner in which the car is not driven and the warm start
cycle is rescheduled, during which time more ice may form on the car.
Finally, Appellants indicate that the rejection is based on improper
hindsight because the rejection is based on the Examiner's opinion and there
is "no factual basis in the cited art supporting the allegation that first and
second wake-ups would permit the operator to avoid scraping windows."
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Appeal Br. 5. However, we disagree with this contention for the reasons
provided above, i.e., because one of ordinary skill in the art would readily
recognize a reason for making the combination proposed. Thus, the
rejection relies on knowledge within the level of ordinary skill in the art, and
we are not persuaded that the rejection relies on knowledge gleaned only
from Appellants' disclosure. In re McLaughlin, 443 F.2d 1392, 1395
(CCPA 1971).
Based on the foregoing, we are not persuaded of reversible error in the
rejection of claim 1. Accordingly, we sustain the rejection of claim 1.
Because Appellants do not present separate arguments for dependent
claims 2, 3, 6, 7, 9, and 11, we also sustain the rejection of those claims for
the same reasons.
Claim 8
Claim 6 depends from claim 1 and further requires a circuit including
a power supply and the heating element. Appeal Br. 9. Claim 8 depends
from claim 6 and further requires that "the power supply is configured to
draw power from an electrical grid." Id. The Examiner finds that both
Gipson and Hammons disclose power supplies that are configured to draw
power from the electrical grid because they disclose using the vehicle battery
as the power supply, which is configured to be recharged via the "electrical
grid due to the mere fact of having a positive and negative terminal and
being able to conduct current across the terminals." Ans. 8.
Appellants argue that Gipson includes a vehicle battery as the power
supply and "there is no reason to modify Gipson to draw power from an
electrical grid." Appeal Br. 5. Appellants do not respond to the Examiner's
position that a vehicle battery is configured to draw power from the
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electrical grid. Without further explanation, we are not persuaded of error in
the Examiner's reasoning provided in the Answer. Accordingly, we also
sustain the rejection of claim 8.
Claims 13-18
We are persuaded by Appellants' argument that the Examiner has not
established that the method of claim 13 would have been obvious. In
particular, we agree with Appellants that the Examiner has not shown that
Hammons discloses waking a control module and then waking the control
module again during the same key off cycle. See Appeal Br. 6. With
respect to claim 13, the Examiner finds that Hammons "teaches waking a
control module that commands the generating during a key off cycle and
waking the control module again during the same key off cycle." Final
Act. 5 (citing Hammons col. 3, 11. 61---63). However, the Examiner does not
adequately explain, in the context of the method claim here, how Hammons
discloses this claim step. Rather, the Examiner responds to Appellants'
argument by asserting that "the manner of operating the control module does
not differentiate the control module from the prior art" and that Hammons
"clearly possesses all of the structur[ al] limitation[ s] to perform the
functional limitations posited in [ c ]laim 13." Ans. 10.
Although we found above that Hammons includes structure that is
capable of performing the functions recited in claim 1, claim 13 is a method
claim, which does not require any particular structure. Rather, claim 13
requires the particular method steps recited, and the cited portions of
Hammons do not disclose the steps for which Hammons is relied upon. The
Examiner does not otherwise explain why the steps of the claims would have
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Application 14/589,122
been obvious here. For these reasons, we do not sustain the rejection of
claim 13 or claims 14--18, which depend therefrom.
Claim 20
Claim 20 depends from claim 1 and further requires "wherein the first
and second wake-up occur without an intervening drive cycle." Appeal
Br. 11. Appellants argue that, "[t]here is no teaching in the art that
Hammons wakes for a warm start more than once without an intervening
drive cycle." Id. at 7. As with claim 1, we find that this claim language
requires only that the control module is capable of performing the function
claimed. Under the Examiner's example scenario described above with
respect to claim 1, two wake-ups would occur before a drive cycle is
initiated, and, thus, we find that Hammons has structure that is capable of
performing the function claimed here. Accordingly, we sustain the rejection
of claim 20.
Obviousness over Gipson, Hammons, and Renke or Han
Appellants do not raise any separate arguments with respect to the
rejections of claims 4, 5, and 12, each of which ultimately depends from
claim 1. See Appeal Br. 7. Thus, we sustain the rejections of these claims
for the reasons provided above.
With respect to claim 19, which depends from claim 13, the Examiner
does not rely on Han in a manner that cures the deficiency in the rejection of
claim 13 discussed above. Accordingly, for the reasons discussed above, we
do not sustain the rejection of claim 19.
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Application 14/589,122
Obviousness over Gipson and Oskorep
Claim 21
With respect to claim 21, the Examiner finds, inter alia, that Oskorep
teaches "during a key off cycle of a vehicle, waking a control module that
both issues a command and schedules a subsequent waking in response to
environmental data (OSKOREP teach[es] the vehicle is tum[ed] on and
future on cycles are schedule[ d] based on the average snowfall that has
occurred; para. [25], line 9-12)." Final Act. 10 ( emphasis omitted).
Appellants first argue that Oskorep only teaches waking the control
module when the engine is running, and not during a key off cycle as
claimed. Appeal Br. 8. We disagree that whenever the engine is running,
the vehicle is not in a key off cycle for the reasons provided by the
Examiner. See Ans. 15-16. Specifically, the Examiner notes that the
Specification does not provide a definition of a "key off cycle" and this
phrase is only mentioned in paragraph 54 of the Specification, which states:
The BCM 64 may obtain future weather information from
the information cloud 7 4 during a key off cycle. If, for example,
a temperature drop, rain, snow, or some combination of these is
expected at the location of the vehicle, the BCM 64 automatically
schedules a wake-up a certain number of hours after the key-off.
Further, the Specification does not disclose a "key on" position and only
discloses the invention in terms of conditioning the vehicle prior to a "drive
cycle." See, e.g., Spec ,r 3 7. Thus, the Examiner finds that the term "key off
cycle" is interpreted to mean the cycle beginning from when the key is
turned to the off position until the beginning of the drive cycle. Ans. 9.
Without further explanation from Appellants, we find that the Examiner's
interpretation is consistent with the Specification and comports with the
broadest reasonable interpretation of the claim. Based on this interpretation
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Application 14/589,122
of the claim, we agree with the Examiner that Oskorep teaches waking the
control module during a key off cycle as required by the claim where
Oskorep discloses starting the engine/heater based on environmental
conditions, without regard to the presence of a key and before a drive cycle
is started.
Appellants also argue that Oskorep does not disclose a control module
that issues a command to tum on the engine and then additionally schedules
subsequent wakings. Appeal Br. 8. We disagree for the reasons provided by
the Examiner. In particular, we agree with the Examiner's statement that:
As taught by OSKOREP, in para. [0051], once the controller is
"woken up" and operating in the "engine/heater on state"
(para. [0050]), the controller looks at the environmental data and
"schedules" a subsequent "wake-up" where the controller will be
placed in an "engine/heater on state" all of which is done by
automatically starting the transmission without having to tum the
key.
. . . Therefore, since OSKOREP teaches scheduling multiple
wake-ups based environmental data, all while the key is not
turned on, OSKOREP clearly teaches "during a key off cycle of
a vehicle, waking a control module that both issues a command
and schedules a subsequent waking in response to environmental
data."
Ans. 16 (emphases omitted). We also agree with the Examiner that:
OSKOREP explicitly teaches, in para. [0051 ], once the controller
is "woken up" and operating in the "engine/heater on state"
(para. [0050]), the controller looks at the environmental data and
[ "]then the FOLLOW_UP FIAG and the values for
ACTIVATE_TIMER and DURATION_ON_TIMER are set",
which effectively "schedules a subsequent waking" which is
based on "The controller then analyzes the stored temperature
and snowfall history data (step 910). Based on this data, the
controller determines whether follow-up (additional engine start-
ups) is necessary."
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Application 14/589,122
Id. at 17 (emphases omitted). Thus, Oskorep explicitly discloses using
environmental data, i.e., "stored temperature and snowfall history data," to
"determine[] whether follow-up (additional engine start-ups) is necessary"
and then setting activation timers and duration timers for subsequent
startups. Oskorep ,r 51.
Finally, to the extent Appellants argue that these disclosures in
Oskorep are only associated with the engine, we are not persuaded of error.
In particular, as discussed above with respect to claim 1, the term wake up is
not defined in the Specification and may be broadly construed to include the
warm start functionality described in Hammons. Similarly, we find that
wake up may also be construed to include the engine/heater on state in
Oskorep as the control module is programmed to act in order to initiate those
activities at a particular time.
Based on the foregoing, we are not persuaded of reversible error in the
rejection of claim 21. Accordingly, we sustain the rejection of claim 21.
CONCLUSION
We AFFIRM the rejections of claims 1-9, 11, 12, 20, and 21. We
REVERSE the rejections of claims 13-19.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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