Ex Parte Kumar et al

Patent Trial and Appeal Board

Mar 30, 2016

12211899 (P.T.A.B. Mar. 30, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/211,899 09/17/2008 Ajith Kuttannair Kumar
91959 7590 04/01/2016
GE GPO- Transportation- The Small Patent Law Group
3135 Easton Turnpike
Fairfield, CT 06828
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.
225755 (552-0144US1) 9341
EXAMINER
HOLWERDA, STEPHEN
ART UNIT PAPER NUMBER
3664
NOTIFICATION DATE DELIVERY MODE
04/01/2016 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):
gpo.mail@ge.com
marie.gerrie@ge.com
lori.E.rooney@ge.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte AJITH KUTTANNAIR KUMAR and
GLENN ROBERT SHAFFER
Appeal2013-005662
Application 12/211,899
Technology Center 3600
Before WILLIAM A. CAPP, BRANDON J. WARNER, and
JAMES J. MAYBERRY, Administrative Patent Judges.
WARNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Ajith Kuttannair Kumar and Glenn Robert Shaffer ("Appellants") 1
appeal under 35 U.S.C. § 134(a) from the Examiner's decision rejecting
claims 1-12 and 20-28, which are all the pending claims. Appeal Br. 4. We
have jurisdiction over the appeal under 35 U.S.C. § 6(b).
We REVERSE.
According to Appellants, the real party in interest is General Electric
Company. Appeal Br. 4.
Appeal2013-005662
Application 12/211,899
CLAIMED SUBJECT MATTER
Appellants' disclosed invention "relates to a powered system, such as
a train, an off-highway vehicle, a transport vehicle, and an agriculture
vehicle, and more particularly to braking systems in such vehicles or other
powered systems." Spec. i-f 1. Claims 1 and 20 are independent. Claim 1,
reproduced below with emphasis added, is illustrative of the subject matter
on appeal.
1. A control system configured to control a braking system
in a powered system, the control system comprising:
a controller configured to be coupled to the braking
system and to monitor a braking effort of the braking system at
a braking region along a route that the powered system travels,
the controller being further configured to control the braking
effort at the braking region, such that the braking effort
approaches a braking effort threshold within a predetermined
range and does not exceed the braking effort threshold;
wherein the braking effort threshold is less than a current
braking capacity of the braking system, the braking capacity
being a braking capability of the braking system as the powered
system is traveling along the route.
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Engle us 3,845,991 Nov. 5, 1974
Harris us 4,414,630 Nov. 8, 1983
Hapeman us 5,661,378 Aug. 26, 1997
Kull us 5,744,707 Apr. 28, 1998
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Application 12/211,899
REJECTIONS
The following rejections are before us for review: 2
I. Claims 1-3, 11, 12, 20-22, and 25-28 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Engle and
Harris. 3 Final Act. 3-13.
II. Claims 4--9, 23, and 24 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Engle, Harris, and Hapeman. Id. at
13-25.
III. Claim 10 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Engle, Harris, and Kull. Id. at 26-27.
ANALYSIS
Independent claim 1 recites, in relevant part, a control system for a
braking system that includes a controller configured to control braking effort
"such that the braking effort approaches a braking effort threshold within a
predetermined range and does not exceed the braking effort threshold,"
2 We note that the drawings stand objected to by the Examiner. See
Final Act. 2. Objections are petitionable matters, not appealable matters,
and are therefore not within the jurisdiction of the Board. See MPEP
§§ 1002.02(c)(3); 1201; see also In reMindick, 371F.2d892, 894 (CCPA
1967). As such, this objection is not before us for review as part of the
instant appeal.
3 We note that claim 22 is not listed in the caption of the rejection, but
also that this claim is specifically addressed in the body of the rejection. See
Final Act. 3, 11-12. Appellants include this claim, which depends from
independent claim 20, in their arguments against this rejection. See Appeal
Br. 7, 14. The caption of the rejection is correct in the Examiner's Answer.
See Ans. 4. Thus, we treat the omission of claim 22 from the caption of the
rejection as an inadvertent and harmless error, and we refer to the rejection
as including this claim herein.
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Application 12/211,899
where the braking effort threshold is less than a braking capacity or
capability of the braking system. Appeal Br., Claims App. (emphasis
added). Independent claim 20 recites a method that includes substantially
similar limitations and explicitly requires a step of controlling the braking
effort in such a way. See id. Appellants argue that Engle, as relied on by the
Examiner, does not disclose a predetermined range within which the braking
effort applied approaches, without exceeding, the braking effort threshold, as
recited in the claims. See Appeal Br. 8-10; Reply Br. 4--12. We agree.
From Appellants' Specification-in light of which the claims must be
interpreted---one of ordinary skill in the art would understand that this
emphasized claim limitation means that the controller applies braking effort
to approach the braking effort threshold within some predetermined range.
See, e.g., Spec. i-f 5. As Appellants explain, "the claims recite that it is the
braking effort that approaches, within a predetermined range, a braking
effort threshold, in contrast to merely a 'braking effort threshold' that is
'within a predetermined range."' Appeal Br. 9. To further highlight this
distinction in meaning, "the former relates to controlling the braking effort
to within a predetermined range of the braking effort threshold, whereas the
latter relates merely to a range of scope of the braking effort threshold,
irrespective of how a braking effort might be controlled in relation thereto."
Id. Appellants persuasively assert that the Examiner has misconstrued the
claims and, in doing so, has failed to establish a supported finding that Engle
discloses the emphasized claim limitation.
In the rejection of independent claims 1 and 20, the Examiner relied
on Engle' s check valve 251 as disclosing an element operating a braking
system, and stated that this valve is configured to control the braking effort
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Application 12/211,899
as in the emphasized claim limitation. Final Act. 4, 10 (both citing Engle,
Fig. 4; col. 21, 1. 30-col. 22, 1. 41). In response to Appellants' arguments,
the Examiner correctly notes that the disputed claim term must be given its
broadest reasonable interpretation, consistent with the Specification, and that
exemplary embodiments from the Specification are not to be read into the
claims. See Ans. 28-32. However, the Examiner also states that "the claim
language merely requires that the 'braking effort' and/or 'braking effort
threshold' exist between two sets of identifiable values comprising a
'predetermined range', not that the controller identifies and controls braking
with respect to any particular 'predetermined range,[']" such that "the term
'predetermined range' does nothing to limit the claim language." Id. at
29-30 (emphasis added); see id. at 32-33.
This claim interpretation, which misconstrues the constraint of the
recited "predetermined range," and effectively reads out this limitation from
the claim, is unreasonable. See Stumbo v. Eastman Outdoors, Inc., 508 F .3d
1358, 1362 (Fed. Cir. 2007) (denouncing claim constructions that render
phrases in claims superfluous). As Appellants persuasively contend, the
claimed braking control "is not merely a range of scope of the braking effort
threshold, irrespective of how a braking effort might be controlled in relation
thereto, but instead relates to controlling the braking effort to within a
predetermined range of the braking effort threshold," which is "less than the
braking capacity of the braking system," and which "must be something less
than the entire range of braking effort." Reply Br. 6; see id. at 4--9.
Check valve 251 of Engle, as relied on by the Examiner, functions to
limit the maximum applied braking effort "to prevent overapplication of the
brakes in an emergency." Engle, col. 21, 1. 48-col. 22, 1. 42. Thus, Engle
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Application 12/211,899
discloses that check valve 251 ensures that the braking effort does not
exceed the braking effort threshold, but does not include any disclosure of
controlling the braking effort to approach that threshold within any
"predetermined range," which would be effectively nothing in Engle's
system (i.e., zero range at all, predetermined or otherwise). Although the
Examiner is correct that specific examples of a "predetermined range"
cannot be imported from the Specification, a reasonable interpretation of the
claims requires some "predetermined range" to exist, as discussed above.
Given a proper construction of the recited "predetermined range"
(within which the braking effort applied approaches, without exceeding, the
braking effort threshold), we agree with Appellants that the Examiner has
not established, nor do we discern, any teaching of such a "predetermined
range," regardless of breadth, within Engle. We note that Harris is relied on
for disclosing a controller with which to control Engle's check valve 251 in
the combination of teachings applied in the rejection, but not to cure the
deficiency of Engle identified above. See Final Act. 4--5, 10-11.
Accordingly, we cannot sustain the rejection of independent claims 1 and 20,
and associated dependent claims 2, 3, 11, 12, 21, 22, and 25-28 under
35 U.S.C. § 103(a) as being unpatentable over Engle and Harris.
Regarding Rejections II and III, we note that these rejections are
premised on the same purported disclosure from Engle, and that Hapeman
and Kull are relied on for teaching additional features, but not to cure the
deficiency of Engle identified above. Thus, we also cannot sustain the
rejections of dependent claims 4--10, 23, and 24 under 35 U.S.C. § 103(a) as
being unpatentable over Engle and Harris, with either Hapeman or Kull.
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Application 12/211,899
DECISION
We REVERSE the Examiner's rejections of claims 1-12 and 20-28.
REVERSED
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