Ex Parte Flick

Board of Patent Appeals and Interferences

Oct 15, 2009

11000160 (B.P.A.I. Oct. 15, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte KENNETH E. FLICK
____________

Appeal 2009-002326
Application 11/000,160
Technology Center 3600
____________

Decided: October 15, 2009
____________

Before: WILLIAM F. PATE, III, JENNIFER D. BAHR, and LINDA E.
HORNER, Administrative Patent Judges.

BAHR, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2009-002326
Application 11/000,160

2
STATEMENT OF THE CASE
Kenneth E. Flick (Appellant) appeals under 35 U.S.C. § 134 (2002)
from the Examiner's decision rejecting claims 1-34. We have jurisdiction
over this appeal under 35 U.S.C. § 6 (2002).

The Invention
Appellant's claimed invention is directed to a vehicle remote control
system. A true controller 18 controls various vehicle devices (e.g., door lock
30) by sending a true command on a vehicle data communications bus 14.
Spec., para. 0019, fig. 1. In addition, true controller 18 detects a rogue
controller 20 attempting to control the vehicle through rogue commands on
the data communications bus 14. Spec., para. 0020, fig. 1. In response to
detecting the rogue commands, true controller 18 sends counteracting
commands on the data communications bus 14. Id.
Claim 1, reproduced below, is illustrative of the claimed invention.
1. A vehicle control system for a vehicle
comprising a data communications bus extending
throughout the vehicle, and at least one vehicle
device connected to the data communications bus,
the vehicle control system comprising:
a true controller at the vehicle for
controlling the at least one vehicle device via a
true command on the data communications bus;
said true controller also controlling the at
least one vehicle device via a respective
counteracting command on the data
communications bus based upon detecting a rogue
controller attempt to control the at least one
vehicle device via a rogue command on the data
communications bus.
Appeal 2009-002326
Application 11/000,160

3
The Rejections
Appellant seeks review of the Examiner's rejections under 35 U.S.C.
§ 102(b) of claims 1, 2, 12, 13, 19, 20, 24, 25, 29, 30, and 34 as anticipated
by US Patent 6,392,534 B1 to Flick (issued May 21, 2002), and under §
103(a) of claims 3-11, 14-18, 21-23, 26-28, and 31-33 as unpatentable over
Flick and US Patent 6,366,198 B1 to Allen (issued Apr. 2, 2002).

SUMMARY OF DECISION
We REVERSE.

OPINION
Each of independent claims 1, 13, 20, 25, and 30 requires a true
controller for controlling at least one vehicle device and for controlling the
vehicle device via a counteracting command based upon detecting a rogue
controller attempt to control the vehicle device via a rogue command on the
data communications bus.
With respect to that feature of the claims, the Examiner found, in
relevant part, that Flick describes a true controller capable of controlling a
vehicle with a true command on a data communication bus based upon a
remote transmitter, and capable of controlling the vehicle with a
counteracting command on the data bus based upon detecting a rogue
controller attempt to control the vehicle with a rogue command on the data
communications bus. Ans. 3, 9-10. In support of these findings, the
Examiner has cited to Flick at Abstract, figs. 1-2 (elements 23 and 47), col.
3, ll. 19-27, col. 6, ll. 18-52, and col. 9, ll. 10-58. Ans. 3.
Appeal 2009-002326
Application 11/000,160

4
Appellant argues that the Examiner has failed to demonstrate that
Flick discloses a true controller that provides a respective counteracting
command based upon detecting a rogue controller attempt to control the at
least one vehicle device, as recited in independent claim 1. Appeal Br. 9.
In reviewing the portions of Flick’s disclosure cited by the Examiner,
we find that Flick describes a security controller 23, responsive to a remote
transmitter 50. Flick, Abstract, ll. 1-5, col. 3, ll. 19-22. Figures 1 and 2
show that remote transmitter 50 transmits signals to a receiver 24, whereby
desired signal enabling means 47 of remote function controller 23
determines if the signals are from an authorized transmitter. Id., col. 5, ll.
48-67, col. 9, ll. 19-32. Authorized transmitters can thereafter be used to
operate remote keyless entry and security features, such as activating the
door locks 26, 27, or disabling the engine 41 by providing an alarm
indication. Id., col. 6, ll. 18-32. On the other hand, an unauthorized
transmitter cannot activate the controller 23. Id., col. 5, ll. 54-56. Further,
Flick describes various vehicle sensors 43 coupled to the remote function
controller 23 that can trigger alarm indicator and engine disable 41, which
would counteract an attempt to break into the vehicle. Id., col. 3, ll. 32-34,
col. 6, ll. 33-39. None of the passages cited by the Examiner indicate that
remote function controller 23 triggers the vehicle sensors 43 or the engine
disabling device 41 based upon detection of unauthorized controller signals,
which do not match the predetermined device signals, as suggested by the
Examiner. See Ans. 9-10, 12.
The Examiner contends that the functional language in the recitation
of the true controller in claims 1, 13, 20, 25, and 30 is merely intended use,
and is not a structural limitation of the controller. Ans. 8-9, 12. To the
Appeal 2009-002326
Application 11/000,160

5
extent that the Examiner’s position is that claims 1, 13, 20, 25, and 30 recite
only a general purpose controller as the claimed true controller, the
Examiner’s position is untenable. It is well established that claims directed
to an apparatus must be distinguished from the prior art in terms of structure
rather than function, see, e.g., In re Schreiber, 128 F.3d 1473, 1477-78 (Fed.
Cir. 1997). In order to satisfy the functional limitations in an apparatus
claim, however, the prior art apparatus must be capable of performing the
claimed function. Id. at 1478. As such, to be capable of performing the
functional limitations in claims 1, 13, 20, 25, and 30, the controller in Flick
must possess the necessary structure, that is, programming, to function as
claimed.
On the basis of our findings above, the Examiner has shown that Flick
describes a true controller capable of detecting a rogue controller attempt
(e.g., via desired signal enabling means 47) and capable of issuing a
counteracting command on the data communications bus (e.g., alarm
indicator and engine disable 41 in response to vehicle sensors 43), but the
Examiner has not shown that Flick describes a true controller that gives a
counteracting command based upon detecting a rogue controller attempt to
control the vehicle device via a rogue command on the data communications
bus, as called for in claims 1, 13, 20, 25, and 30. Rather, Flick gives a
counteracting command based upon detecting receipt of an alarm signal
from one of the vehicle sensors, without detecting whether a rogue controller
has attempted to control the device via a rogue command on the bus.

Appeal 2009-002326
Application 11/000,160

6
CONCLUSIONS
Appellant has demonstrated that the Examiner erroneously found that
Flick describes a "true controller also controlling the at least one vehicle
device via a respective counteracting command on the data communications
bus based upon detecting a rogue controller attempt to control the at least
one vehicle device via a rogue command on the data communications bus."
As such, the Examiner's rejection of independent claims 1, 13, 20, 25, and
30, as well as claims 2, 12, 19, 24, 29, and 34, which depend therefrom,
cannot be sustained.
Further, the Examiner has not pointed to any teaching in Allen, or
articulated any other reason, that would show why one of ordinary skill in
the art would have been prompted to modify Flick's controller 23 to
counteract a rogue command, e.g., by activating the alarm indicator and
engine disable 41 based upon detecting a rogue controller attempt.
Therefore, the Examiner's rejection of claims 3-11, 14-18, 21-23, 26-28, and
31-33 cannot be sustained.

DECISION
The Examiner's decision is reversed as to claims 1-34.

REVERSED

Appeal 2009-002326
Application 11/000,160

7
hh

ALLEN, DYER, DOPPELT, MILBRATH & GILCHRIST P.A.
1401 CITRUS CENTER
255 SOUTH ORANGE AVENUE
P.O. BOX 3791
ORLANDO, FL 32802-3791