Ex Parte JESS et al

Patent Trial and Appeal Board

Mar 15, 2016

12424230 (P.T.A.B. Mar. 15, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/424,230 04/15/2009
74175 7590 03/17/2016
Harness Dickey & Pierce, P.L.C. (GM)
P.O. Box 828
Bloomfield Hills, MI 48303
FIRST NAMED INVENTOR
RICHARD B. JESS
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.
P005384-PTE-CD 1145
EXAMINER
WILLIAMS, MAURICE L
ART UNIT PAPER NUMBER
3611
NOTIFICATION DATE DELIVERY MODE
03/17/2016 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):
troydocketing@hdp.com
gm-inbox@hdp.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RICHARD B. JESS, MICHAEL L. KOCIBA,
JOSEPH M. STEMPNIK, JAMES L. WORTHING, and
KATIE C. BONASSE
Appeal2014-001352
Application 12/424,230
Technology Center 3600
Before CHARLES N. GREENHUT, ANNETTE R. REIMERS, and
ERIC C. JESCHKE, Administrative Patent Judges.
JESCHKE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Richard B. Jess et al. (Appellants) seek review, under 35 U.S.C.
§ 134(a), of the Examiner's decision to reject claims 1-8, 10-17, and 19.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
Appeal2014-001352
Application 12/424,230
BACKGROUND
The disclosed subject matter "relates to vehicle systems and more
particularly to internal combustion engines." Spec. iJ 2. Claims 1 and 11 are
independent. Claim 1 is reproduced below, with emphasis added:
1. An engine control system for a vehicle,
compnsmg:
a torque module that controls torque output
of an engine based on a driver torque request and
that increases said torque output based on a wheel
drag torque request generated based on a driven
wheel speed; and
a drag request evaluation module that
disables said increase of said torque output when
said driven wheel speed is greater than an undriven
wheel speed by more than a predetermined speed.
REJECTIONS ON APPEAL
1. Claims 1-3, 5-8, 10-13, 15-17, and 19 are rejected under
35 U.S.C. § 102(b) as anticipated by Beyer (US 6,535,809 Bl, issued Mar.
18, 2003).
2. Claims 4 and 14 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Beyer. 1
1 Although claims 4 and 14 are listed as anticipated by Beyer (Final
Act. 2 (dated Jan. 31, 2013)), the Examiner does not address the language
recited in claims 4 and 14 in the body of Rejection 1 (see id. at 2-3). As
such, we consider the list of claims under Rejection 1 to be a typographical
error. When corrected, the list includes claims 1-3, 5-8, 10-13, 15-17, and
19 (as shown above).
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Application 12/424,230
DISCUSSION
Rejection 1 - The rejection of claims 1-3, 5--8, 10--13,
15-17, and 19 under 35 U.S.C. § 102(b)
A. Claims 1, 5, 6, 10, 11, 15, 16, and 19
For the claims in this group, Appellants argue the patentability of
independent claims 1 and 11 together and do not separately argue the
dependent claims. Appeal Br. 9-11. Thus, we address only claim 1, with
claims 5, 6, 10, 11, 15, 16, and 19 standing or falling with claim 1. See
37 C.F.R. § 41.37 (c)(l)(iv) (2012).
Appellants contend that "Beyer is silent as to increasing the torque
output of an engine based on a wheel drag torque request generated based on
a driven wheel speed," as recited at the end of the "torque module"
limitation in claim 1. Appeal Br. 10. Appellants argue that, instead, Beyer
teaches "decreasing engine torque output to slow a driven wheel speed to a
target velocity that is less than the current vehicle speed." Id. at 9.
According to Appellants, Beyer teaches (1) ""deriving a target velocity that is
lower than the vehicle speed by a target velocity difference" (citing Beyer,
col. 6, 11. 29-31 ), (2) "that the target velocity difference (Target~ V) is 'the
desired amount by which the driven wheel speed is to be lower than the
vehicle speed during deceleration with engine braking"' (quoting Beyer,
col. 3, 11. 20-23), (3) "deriving and delivering a torque command to a power
train to slow a driven wheel speed down to the target velocity" (citing Beyer,
col. 6, 11. 36-39), and ( 4) "how to decrease engine torque output to prevent
wheel slip during vehicle deceleration" (citing Beyer, col. 3, 11. 19-34). See
Appeal Br. 9-10.
Appellants also contend that Beyer is "silent as to disabling such an
increase of the torque output (made based on a wheel drag torque request
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Application 12/424,230
generated based on a driven wheel speed) when the driven wheel speed is
greater than an undriven wheel speed by more than a predetermined speed,"
as recited in the "drag request evaluation module" limitation in claim 1. Id.
at 10. Appellants argue that "the Examiner fails to recognize that Beyer
does not even disclose increasing torque output of the engine based on a
driven wheel speed." Id. 2 According to Appellants, "[t]he Examiner's error
is highlighted by the fact that the Examiner merely alleges what Beyer
would do - 'if an increased torque is delivered ... ' - while Beyer does not
actually disclose increasing torque output of an engine." Id. at 10-11.
In response, the Examiner quotes various portions of column 1, lines
45-54 of Beyer and states that the "driven wheel speed" falling below the
"target velocity" "would clearly result in the velocity error (driven wheel
speed [minus] target velocity) being a negative value; therefore, in order to
reduce the error (bring the value closer to zero) a torque increase is
necessary to bring the value of the driven wheel speed closer to that of the
target speed." Ans. 5-6. As to the "drag request evaluation module"
limitation, the Examiner cites column 4, lines 42-51 of Beyer as "[ fJurther
evidence of the disclosure of a torque increase, which is also evidence of
disabling an increase." Id. at 6. According to the Examiner,
This section discloses that in order to provide the torque
increase, the difference between the driven wheel speed and
2 In the Response to Arguments section of the Final Office Action, the
Examiner stated that because " [ t ]he system disclosed in B [ e ]yer monitors the
wheel speeds (see col. 1, [11.] 50-54; see also step 40, col. 3, [11.] 4-10)," "if
an increased torque is delivered, the system would continue to monitor the
wheel speeds and cancel/disable a torque increase (by exiting the subroutine)
if the velocity difference becomes zero." Final Act. 5.
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Application 12/424,230
Id.
target velocity should be less than a calibrated value of zero
(driven wheel speed - target velocity < 0). In order to correct
such a difference/error, the torque of the wheel that is
controlled (driven wheel) will need to be increased.
Transversely, when the torque has been increased in the control
mode and the driven wheel speed is greater than or equal to that
of the target velocity, the control mode will exit, as column 1,
line 41 (and Figs. 3A and 3B) provide that the control of the
torque is in a closed loop system. Additionally, column 3, lines
15-16 along with lines 59-61 provide that the target velocity is
derived from the speed of the non-driven wheels.
For the Examiner's reasons as set forth above, we agree that Beyer
teaches the limitations at issue in claim 1. Specifically, we agree that Beyer
teaches increasing "torque output based on a wheel drag torque request
generated based on a driven wheel speed," as recited in claim 1. As
discussed by the Examiner, Beyer addresses situations in which a vehicle's
driven wheels "slip" (i.e., skid) during engine braking while the undriven
wheels continue to roll with the moving vehicle. See Beyer, col. 1, 11. 3 8--41
(discussed at Final Act. 2). As further discussed by the Examiner, Beyer
teaches that, in such situations, torque to the driven wheels should be
increased to reduce the difference between the current speed of the driven
(yet slipping) wheels (referred to, in Beyer, as "driven wheel speed") and the
target speed of the driven wheels (referred to as "target velocity") to yield
sufficient engine braking. See Final Act. 2 (discussing Beyer, col. 1, 11. 3 8-
41, 45--49); Ans. 5-6 (discussing Beyer, col. 1, 11. 45-49); see also Beyer,
col. 3, 1. 53 - col. 4, 1. 1 (discussing a"~ V ERROR= DRIVEN WHEEL
SPEED - TARGET VELOCITY").
The various passages from Beyer relied on by Appellants do not teach
decreasing engine torque output to slow a driven wheel speed. See Appeal
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Br. 9-10. Although Appellants are correct that Beyer discloses a "target
velocity" lower than the "vehicle speed," this does not show that the driven
wheels must be slowed down to the "target velocity" by a decrease in torque
output from the engine. See id. As discussed above, the driven wheels are
not rotating at the "vehicle speed," but, rather, at a "driven wheel speed" less
than the "target velocity." Thus, an increase in torque is required to reduce
the difference between the "driven wheel speed" and the "target velocity."
We tum now to the arguments addressing the "drag request evaluation
module" limitation. In the Appeal Brief, Appellants address that limitation
by relying on the alleged lack of teachings in Beyer of an increase in engine
torque. Appeal Br. 10-11. For the reasons discussed above, however, we
are not apprised of error based on those arguments. In the Reply Brief,
Appellants argue that "Beyer teaches exiting when the ~ V Error is greater
than the calibrated value, which may be a small positive value" but that
"Beyer is silent as to exiting in response to a determination that the driven
wheel speed (based upon which engine torque output was increased) is
greater than an undriven wheel speed by more than a predetermined speed."
Reply Br. 6 (discussing Beyer, col. 5, 11. 56-63). We are not apprised of
error based on this argument because it does not address the rejection as
articulated. To address the limitation at issue, the Examiner does not rely on
the disclosure regarding exit conditions, discussed by Appellants. See Final
Act. 2 (discussing Beyer, col. 4, 11. 46-51, col. 1, 11. 50-54); Ans. 6
(discussing Beyer, col. 4, 11. 42-51, col. 1, 1. 41, col. 3, 11. 15-16, 59-61).
Appellants have not persuasively shown that the disclosures relied on by the
Examiner do not teach the limitations at issue.
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For these reasons, we sustain the rejection of claim 1 as unpatentable
over the combined teachings relied upon by the Examiner. Claims 5, 6, 10,
11, 15, 16, and 19 fall with claim 1.
B. Claims 2 and 12
Claim 2 recites "[t]he engine control system of claim 1 wherein said
drag request evaluation module disables said increase when an accelerator
pedal is actuated longer than a predetermined period during said increase"
and claim 12 recites "[t]he engine control method of claim 11 further
comprising disabling said increasing when an accelerator pedal is actuated
longer than a predetermined period during said increase." Appeal Br. 18, 21
(Claims App.). To address these limitations, the Examiner relies on column
4, lines 53-58 of Beyer and states "actuation of the accelerator pedal would
result in the second condition [discussed in the relied-on passage] not being
met." Final Act. 3.
Appellants contend that the relied-on passage does not disclose "any
requirement of accelerator pedal actuation for longer than a predetermined
period during an increase of the torque output." Appeal Br. 12.
In response, the Examiner states that the passage teaches "that the
vehicle will exit the control mode if the throttle position is not indicative of
deceleration to prevent the control from being activated simultaneously with
acceleration traction control." Ans. 7. According to the Examiner, "[i]t is
clear from this requirement that actuating the accelerator pedal for any time
(predetermined time greater than zero) would result in the vehicle exiting the
control system, thereby disabling/preventing any torque increase." Id.
Although the relied-on passage does relate to throttle positions and
thus, as impliedly found by the Examiner, relates to accelerator pedal
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actuation, we agree with Appellants that the passage does not relate to
accelerator pedal actuation for "longer than a predetermined period," as
required by claims 2 and 12. The record does not support the Examiner's
apparent finding that Beyer' s silence as to a length of time inherently
discloses a "predetermined period" of zero seconds. As to the Examiner's
position that the limitations at issue are "optional" because they include the
term "when" (Ans. 7), the decision relied on does not address that term. See
In re Johnston, 435 F.3d 1381, 1384 (Fed. Cir. 2006) (addressing a claim
with the "permissive form 'may"'). We view the term "when" in claims 2
and 12 as indicating a condition that, if satisfied, leads to performance of the
functions recited in the remainder of the limitations. Thus, we do not sustain
the rejection of claims 2 and 12.
C. Claims 3 and 13
Claim 3 recites "[t]he engine control system of claim 1 wherein said
predetermined speed is determined based on a maximum difference between
said driven wheel speed and said undriven wheel speed during vehicle
turning" and claim 13 recites "[t]he engine control method of claim 11
wherein said predetermined speed is determined based on a maximum
difference between said driven wheel speed and said undriven wheel speed
during vehicle turning." Appeal Br. 18, 21 (Claims App.).
For these limitations, the Examiner relies on column 4, lines 1--4 and
column 3, lines 39--40 of Beyer. See Final Act. 3; see also Ans. 7 ("Column
3, lines 39--40 provide that the target change in velocity (which is used to
determine the error) is calculated based on the vehicle tum curvature.").
The record here does not support the Examiner's findings that the
relied-on disclosures satisfy the limitations at issue. As noted by Appellants,
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Application 12/424,230
Beyer discloses that "Target~ V" (relied on by the Examiner) is based on
vehicle speed and tum curvature and also discloses that vehicle speed, in
tum, is based on the speed of the undriven wheels. See Reply Br. 9 (citing
Beyer, col. 3, 11. 35-52, 14-18). On the record here, we agree with
Appellants that "Beyer is silent as to the use of a driven wheel speed" in
determining Target~ V. See id. Thus, we do not sustain the rejection of
claims 3 and 13.
D. Claims 7 and 1 7
Claim 7 recites "[t]he engine control system of claim 1 wherein said
drag request evaluation module prevents said increase when at least one of'
various conditions are met. Appeal Br. 19 (Claims App.). To argue the
patentability of claim 7, Appellants "note that antecedent basis for 'said
increase' is provided in claim 1, which states a torque module that increases
said torque output based on a wheel drag torque request generated based on
a driven wheel speed." Id. at 14. According to Appellants, "Beyer is silent
as to preventing an increase of the torque output (made based on a wheel
drag torque request generated based on a driven wheel speed) when at least
one of' the conditions recited in claim 7 is met. Id. at 14-15. Appellants
rely on the same arguments for claim 17. Id. at 15.
We are not apprised of error in the rejection of claims 7 and 17
because Appellants merely recite the language of the claims and assert that
the prior art does not disclose that limitation. See 37 C.F.R.
§ 41.37(c)(l)(iv) ("A statement which merely points out what a claim recites
will not be considered an argument for separate patentability of the claim.");
see also In re Lovin, 652 F.3d 1349, 1356-57 (Fed. Cir. 2011). Further, to
the extent Appellants present substantive arguments in the Appeal Brief, we
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Application 12/424,230
agree with the Examiner that those arguments "are drawn to the contention
that Beyer does not disclose disabling a torque increase, as provided in claim
1, and not to the elements of claims 7 and 17." Ans. 8. Under that view, for
the reasons discussed above with regard to claims 1 and 11, we are not
apprised of error.
Finally, for procedural reasons, we will not address the discussion in
the Reply Brief in which Appellants present new arguments as to an alleged
distinction between "preventing" and "disabling" an increase in torque
output. See Reply Br. 11; see also 37 C.F.R. § 41.4l(b)(2) ("Any argument
raised in the reply brief which was not raised in the appeal brief, or is not
responsive to an argument raised in the examiner's answer, including any
designated new ground of rejection, will not be considered by the Board for
purposes of the present appeal, unless good cause is shown."). These
arguments address the Rejection as originally set forth in the Final Office
Action, rather than positions raised in the Answer. Compare Final Act. 3,
with Ans. 8. In addition, Appellants have not shown good cause for failing
to provide this argument in the Appeal Brief. Thus, we sustain the rejection
of claims 7 and 1 7.
E. Claim 83
Claim 8 recites "[t]he engine control system of claim 1 wherein said
drag request evaluation module selectively prevents said increase when at
3 Although Appellants state that "[ c ]laim 18 includes similar
limitations and should therefore be allowable for at least similar reasons" as
claim 8 (Appeal Br. 16), Appellants acknowledge that claim 18 is "objected
to as being dependent upon a rejected base claim, but would be allowable if
rewritten in independent form" (id. at 5). Thus, we do not address claim 18.
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Application 12/424,230
least one of' certain conditions are met. Appeal Br. 20 (Claims App.). To
argue the patentability of claim 8, Appellants again "note that antecedent
basis for 'said increase' is provided in claim 1, which states a torque module
that increases said torque output based on a wheel drag torque request
generated based on a driven wheel speed" and argue that "Beyer is silent as
to preventing an increase of the torque output (made based on a wheel drag
torque request generated based on a driven wheel speed) when at least one
of' the conditions recited in claim 8 is met. Id. at 15.
We are not apprised of error in the rejection of claim 8 because
Appellants merely recite the language of the claim and assert that the prior
art does not disclose that limitation. See 37 C.F.R. § 41.37(c)(l)(iv); see
also Lovin, 652 F.3d at 1356-57. Further, to the extent Appellants present
substantive arguments in the Appeal Brief, we agree with the Examiner that
those arguments "are drawn to the contention that Beyer does not disclose
disabling a torque increase, as provided in claim 1, and not to the elements
of claim[] 8." Ans. 9. Under that view, for the reasons discussed above with
regard to claim 1, we are not apprised of error.
Finally, for procedural reasons, we will not address the discussion in
the Reply Brief in which Appellants present new arguments as to an alleged
distinction between "preventing" and "disabling" an increase in torque
output. See Reply Br. 12; see also 37 C.F.R. § 41.4l(b)(2). These
arguments address the Rejection as originally set forth in the Final Office
Action, rather than positions raised in the Answer. Compare Final Act. 3,
with Ans. 9. In addition, Appellants have not shown good cause for failing
to provide this argument in the Appeal Brief. Thus, we sustain the rejection
of claim 8.
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Rejection 2 - The rejection of claims 4 and 14
under 35 U.S.C. § 103(a)
Claim 4 recites "[t]he engine control system of claim 1 wherein said
undriven wheel speed corresponds to a greatest speed of one of a plurality of
undriven wheels of said vehicle." Appeal Br. 18 (Claims App.). To argue
the patentability of claim 4, Appellants "note that antecedent basis for 'said
undriven wheel speed is provided in claim 1, which states a drag request
evaluation module that disables said increase of said torque output when said
driven wheel speed is greater than an undriven wheel speed by more than a
predetermined speed." Id. at 16. According to Appellants,
Beyer does not teach or render obvious disabling an
increase of the torque output (made based on a wheel drag
torque request generated based on a driven wheel speed) when
said driven wheel speed is greater than an undriven wheel speed
by more than a predetermined speed, where the undriven wheel
speed corresponds to a greatest speed of one of a plurality of
undriven wheels of said vehicle.
Id. Appellants rely on the same arguments for claim 14. Id.
We are not apprised of error in the rejection of claims 4 and 14
because Appellants merely recite the language of the claims and assert that
the prior art does not disclose that limitation. See 37 C.F.R.
§ 41.37(c)(l)(iv); see also Lovin, 652 F.3d at 1356-57. In the block
quotation above, Appellants essentially recite certain limitations of claim 1
and claim 4 together, and contend that Beyer does not teach those
limitations. Further, to the extent Appellants present substantive arguments
in the Appeal Brief, we agree with the Examiner that those arguments are
"drawn to the contention that Beyer does not disclose disabling a torque
increase, as provided in claim 1, and not to the elements of claims 4 and 14."
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Ans. 9. Under that view, for the reasons discussed above with regard to
claims 1 and 11, we are not apprised of error.
Finally, in the Reply Brief, Appellants restate the block quotation
above, with certain language in boldface type. See Reply Br. 13. On the
record here, Appellants do not apprise us of error in the Examiner's findings
or conclusions as to obviousness. See In re Oetiker, 977 F.2d 1443, 1445
(Fed. Cir. 1992) (discussing how, if an examiner presents a prima facie case,
"the burden of coming forward with evidence or argument shifts to the
applicant"). Thus, we sustain the rejection of claims 4 and 14.
DECISION
We AFFIRM the rejection of claims 1, 5-8, 10, 11, 15-1 7, and 19
under 35 U.S.C. § 102(b ), REVERSE the rejection of claims 2, 3, 12, and 13
under 35 U.S.C. § 102(b), and AFFIRM the rejection of claims 4 and 14
under 35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l .136(a)(l )(iv).
AFFIRMED-IN-PART
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