Ex Parte Le Gallo

Board of Patent Appeals and Interferences

Jun 17, 2009

10673027 (B.P.A.I. Jun. 17, 2009)

1
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte YANN LE GALLO
____________

Appeal 2008-003348
Application 10/673,027
Technology Center 2800
____________

Decided:1 June 17, 2009
____________

Before EDWARD C. KIMLIN, TERRY J. OWENS, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

1 Two-month time period for filing an appeal or commencing a civil action,
as recited in 37 C.F.R. § 1.304, begins to run from the Decided Date shown
on this page of the decision. The time period does not run from the Mail
Date (paper delivery) or Notification Date (electronic delivery).
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DECISION ON APPEAL
Appellant seeks review under 35 U.S.C. § 134 from the Examiner’s
rejections of pending claims 1-26 in the final Office Action dated March 14,
2006. This Board has jurisdiction under 35 U.S.C. § 6(b). For the reasons
set forth below, we AFFIRM-IN-PART.
STATEMENT OF THE CASE
The invention of the present application is directed to a system which
detects obstructions in the path of a vehicle openable member, such as a
powered window. The system includes a direct detector and an indirect
detector. The direct detector comprises a light sensor, which may detect the
light along the closing line of the window. (See Spec. 2). The indirect
detector uses information on the position of the window derived from the
window drive system (see Spec. 9, ¶ [45]).
Claims 1, 6-8, and 18 are illustrative and reproduced below:
1. A system that detects an obstruction in a
path of an openable vehicle member, comprising:
a direct detector that directly detects the
obstruction, the direct detector including a sensor;
and
an indirect detector that indirectly detects the
obstruction and outputs openable member position
information to the direct detector, wherein the
openable member position information is used to
define operating parameters of the direct detector.

6. The system of claim 1, wherein the direct
detector detects the obstruction according to the
openable member position information provided
by the indirect detector.
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7. A method for detecting an obstruction in the
path of an openable member, comprising the steps
of:
indirectly detecting the obstruction by detecting a
force exerted by the obstruction on the openable
member using an indirect detector;
outputting openable member position information;
directly detecting the obstruction in the path of the
openable member with a direct detector based on
the openable member position information,
wherein the direct detector includes a sensor; and
using the openable member position information to
define operating parameters of the direct detector.

8. The method of claim 7, wherein the step of
directly detecting the obstruction comprises
detecting a light distribution along a closing line of
the openable member.

18. The system of claim 1, wherein the
operation of the direct detector is adapted
according to the openable member position
information outputted by the indirect detector.

The Examiner relies on the following prior art references as evidence
of unpatentability of the rejected claims:
O’Connor WO 01/36772 A1 May 25, 2001
Breed US 6,442,465 B2 Aug. 27, 2002

The Examiner maintains the following rejections of the pending
claims, for which Appellant seeks review:
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1. Claims 1-4, 6-15, and 17-26 stand rejected under 35 U.S.C. §
102(b) as anticipated by O’Connor.
2. Claims 5 and 16 stand rejected under 35 U.S.C. § 103(a) as
obvious over O’Connor in view of Breed.
Regarding rejection (1), Appellant argues the same feature with regard
to claims 1-4, 7, 14, 15, 19, 20, 22, 23, 25, and 26 (App. Br. 4-9). We select
claim 1 as representative of the argued group. Appellant argues the same
feature with regard to claims 6 and 17 (App. Br. 6, 9-10). We select claim 6
as representative of the group. Appellant argues claims 8-13 as a group, of
which we select claim 8 as representative (App. Br. 8). Appellant argues
claims 18, 21, and 24 as a group of which we select claim 18 as
representative (App. Br. 10).
Regarding rejection (2), Appellant advances the same argument made
regarding claim 1 (App. Br. 11). We address Appellant’s argument
regarding rejection (2) to the extent that it has been separately argued.

CLAIM 1
The Examiner finds that O’Connor teaches all limitations of the
claimed invention, including that openable member information provided by
the indirect detector is used as operating parameters of the direct detector
(Ans. 3-4).
Appellant contends O’Connor does not teach using openable member
position information provided by the indirect detector to define operating
parameters of the direct detector as required by claim 1 (App. Br. 4-7).
Appellant contends, rather, that O’Connor discloses a system in which
position information is used as an operating parameter (Id.).
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The Examiner found the limitation was anticipated by O’Connor
because the system in O’Connor discloses one with a controller that received
“position information as operating parameters to dynamically adapt (adjust)
each director output signal” (Ans. 6).

ISSUE
Has Appellant shown the Examiner reversibly erred in finding
O’Connor discloses a system in which openable member position
information from the indirect detector (i.e., the contact-based system) is used
to define operating parameters of the direct detector (i.e., the non-contact
based system)?
FINDINGS OF FACT
1. The Specification discloses a system which detects obstructions in the
path of a vehicle openable member, such as a powered window. The
system includes a direct detector and an indirect detector (Spec. ¶
[10]).
2. The Specification states the system includes a direct obstruction
detector (“direct detector”) and an indirect obstruction detector
(“indirect detector”). The direct detector comprises a light sensor,
which may detect the light along the closing line of the window (Spec.
¶ [10]).
3. The Specification states the indirect detector uses a force exerted by
an obstruction on an openable member to indirectly detect an
obstruction (Spec. ¶ [10]).
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4. The Specification states the indirect detector provides openable
member position information to the direct detector (Spec. ¶ [10]).
5. The Specification describes a detector 14 placed in a lower corner of a
window opening and may comprise a charge-coupled device (“CCD”)
and a focusing lens (Spec. ¶¶ [23]-[26]). The detector CCD comprises
a plurality of pixels or picture elements, each of which detects the
amount of light received from a point along the upper edge of the
window opening (Spec. ¶ [26]). An obstruction in the opening will
cause a change in light levels detected by the pixels aligned with the
position of the obstruction (Spec. ¶¶ [26]-[28]).
6. The Specification states that the intensity of light falling on the
individual pixels of the CCD may be used to develop a histogram of
light levels across the length of the window opening upper edge. In
one embodiment, an array of 128 x 128 pixels is used. Preferably, 10
pixels of each row of the CCD sensor are used for each point on the
histogram (Spec. ¶¶ [27]-[30]). The Specification further indicates
that the term “upper edge” may be replaced by the term “closing
contact line” of the openable member (Spec. ¶ [59]).
7. The Specification explains that a supplemental light source,
particularly an infrared light, may be provided in low ambient light
environments (Spec. ¶ [40]).
8. The Specification describes a force detection circuit 52, part of the
drive system for operating an openable member. The force detection
circuit detects the presence of an obstruction indirectly by detecting a
force greater than a nominal one for closing the openable member by
the drive system (Spec. ¶ [45]).
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9. The Specification further describes a contactless detector 54, which is
in communication with the force detection circuit and the motor. It
can interrupt the operation of the motor that operates the openable
member (Fig. 5, ¶ [47]).
10. In the Specification, the detector 14 is classified as a direct detector
(Spec ¶ [47]). The system may include an indirect detection circuit
52, which constitutes an indirect detector (Spec. ¶¶ [45] and [49]).
11. The Specification describes that position information 58 is applied to
the contactless detector 54 from the force detection circuit 52 (Spec. ¶
[50], Fig. 5). The position information may be used to adjust the
detection threshold (Spec. ¶ [51]).
12. O’Connor describes a system for detecting an obstruction in a vehicle
window opening, comprising a contact-based (i.e., the indirect
detector) and a non-contact-based detection system (i.e., the direct
detector) (Abstract; p. 4, ll. 14-18).
13. In O’Connor, the non-contact system includes an emitter of a field of
energy (light) and a receiver to detect a portion of the emitted light
reflected or obscured (p. 8, ll. 1-13).
14. O’Connor discloses that the emitter/receiver units of the non-contact
system include emitters that produce a field of energy and receivers
that detect any portion of the respective field of energy that is
reflected back (p. 8, ll. 1-13).
15. O’Connor teaches if the non-contact system has once failed to
register an obstacle, but the contact-based system has exhibited a
significantly slower motor rotation rate or a closure position which is
short of the fully closed position within the aperture, an obstacle
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16. detection may be recognized, and the thresholds for the non-contact
system may be adjusted incrementally in order to increase the
sensitivity of the non-contact system (p. 27. ll. 20-27).
17. O’Connor discloses a contact system that detects changes in the
operating characteristics of the closure, including time-based and
motor-characteristic based systems (p. 17, ll. 17-21). The time-based
system may include use of a predetermined time for a closure to reach
a fully closed position to determine whether an obstruction is present
(p. 17, ll. 22-25). The motor characteristic-based system may include
monitoring the motor, such as a ripple counter on the power supply to
the motor, to determine window position (p. 20, ll. 3-21).
18. O’Connor teaches the contact-based system may be considered in
conjunction with the non-contact system over the entire range of
closure travel (p. 27, ll. 28-30). The controller may then employ
multiple factors of the non-contact and contact systems to establish
the presence of an obstacle (p. 27, ll.30-32). One of these factors may
include the closure’s absolute position (p. 28, l. 5).
19. O’Connor teaches a controller 202 that may control a hybrid system
comprising a contact and a non-contact detection systems. This
controller 202 may be the controller 38 of the non-contract system (p.
23, ll. 22-29).
20. O’Connor teaches the controller 202 may have associated with it
memory for storing the threshold values for both detection systems
and the appropriate actions to take depending on which thresholds are
achieved (p. 26, l. 31 – p. 27, l. 3). The controller 202 also receives
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21. input from both systems and can detect obstacles based on the
position information of both systems (p. 24, l. 30 – p. 25, l. 2).
22. The Merriam Webster dictionary defines “define” as, “to fix or mark
the limits of: demarcate.” Merriam-Webster’s Collegiate Dictionary
303 (10th ed. 1996).
23. The Merriam Webster dictionary defines “parameter” as, “any of a
set of physical properties whose values determine the characteristics
or behavior of something.” Merriam-Webster’s Collegiate Dictionary
843 (10th ed. 1996).
24. The Merriam-Webster dictionary defines “adapt” as, “to make fit (as
for a specific or new use or situation) often by modification.”
Merriam-Webster’s Collegiate Dictionary 13 (10th ed. 1996).
25. The Merriam-Webster dictionary defines accord as, “to be consistent
or in harmony: agree.” Merriam-Webster’s Collegiate Dictionary 7
(10th ed. 1996).
PRINCIPLES OF LAW
Claims are given the broadest reasonable construction consistent with
the Specification. In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). The
Patent and Trademark Office (“PTO”) determines the scope of claims in
patent applications not solely on the basis of the claim language, but upon
giving claims their broadest reasonable construction “in light of the
specification as it would be interpreted by one of ordinary skill in the art.”
In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004).
“A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
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art reference.” Verdegaal Bros. v. Union Oil Co. of California, 814 F.2d
628, 631 (Fed. Cir. 1987), cert. denied, 484 U.S. 827 (1987)
“It is well settled that the recitation of a new intended use for an old
product does not make a claim to that old product patentable.” In re
Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997).
“[W]here the Patent Office has reason to believe that a functional
limitation asserted to be critical for establishing novelty in the claimed
subject matter may, in fact, be an inherent characteristic of the prior art, it
possesses the authority to require the applicant to prove that the subject
matter shown to be in the prior art does not possess the characteristic relied
upon.” In re Best, 562 F.2d 1252, 1254-55 (CCPA 1977).
ANALYSIS
We begin by construing the disputed claim phrase, “openable member
position information to define operating parameters.” We must give the
claim phrase the broadest reasonable construction in light of the
Specification. Am. Acad. of Sci. Tech. Ctr., 367 F.3d at 1364.
All the pending claims in this appeal include, either directly or
indirectly by dependency, the claim phrase, “wherein the openable member
position information [from the indirect detector] is used to define operating
parameters of the direct detector” (see, e.g., claim 1). The parties dispute the
definition or scope of this limitation, particularly, the meaning of defining an
operating parameter.
The Examiner’s construction is implied from the context of the
arguments. The Examiner contends that the prior art teaches the use of an
indirect detector “and mentions various manners in which an obstruction
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may be detected indirectly and provide position information as operating
parameters to dynamically adjust the direct detector” (Ans. 3). Appellant
points out the limitation is “to define”, not “to use as,” operating parameters
(App. Br. 4). The Examiner responds that the term, “define” is vague and
redundant, and that one of ordinary skill would “recognize[d] that to use an
operating parameter it has to be first determined (sensed) in a particular way,
to further carry on a task” (Ans. 6-7).
In construing a claim, we must give a claim term the broadest
reasonable interpretation consistent with and in light of the Specification, as
it would be interpreted by one of ordinary skill in the art. Am. Acad. of Sci.
Tech. Ctr., 367 F.3d at 1364. Neither party points to any unique or
particular definition or connotation in the Specification of the claim phrase
regarding defining operating parameters. Likewise, after reviewing the
Specification we find no definition of “define” as used in the claims.
The relevant definition of “define” according to the Merriam Webster
dictionary is “to fix or mark the limits of: demarcate” (FF 20). In the
context of the claim limitation, the position information from the indirect
detector must be used to define operating parameters of the direct detector.
A parameter is “any of a set of physical properties whose values determine
the characteristics or behavior of something” (FF 21).
Thus, we construe to define operating parameters as to demarcate a set
of physical properties whose values determine the operating characteristics
of the direct detector. With this construction of the disputed claim phrase,
we now address Appellant’s arguments.
Appellant argues that O’Connor does not teach a system in which the
openable member position information of an indirect detection system is
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used to define the operating parameters of a direct detection system (App.
Br. 4-8). In analyzing this argument, we first note O’Connor refers to two
subsystems of its detection system as “contact” and “non-contact” systems
(FF 12). The contact system is based on the operating characteristics of the
motor operating the window closure. These characteristics may include a
counter on the number of pulses transmitted in the power supply to the
motor (FF 16). This corresponds to the claim limitation of an indirect
system, as described by Appellant’s Specification (FF 8-10). O’Connor’s
non-contact system utilizes a light emitter and detector in the window
opening, and corresponds to the claim limitation of a direct detector (FF 2, 5
and 10).
After fully reviewing the O’Connor disclosure, we do not agree with
Appellant’s contention, for two reasons. First, the claims in which this issue
arises (other than claims 7-13) are directed to a system. O’Connor discloses
a system including a controller which is able to receive input as an indication
of closure position (openable member position information) from the
contact-based (indirect) system. The controller can also utilize input, e.g.,
detected energy levels, from which the controller defines an operating
parameter, e.g., offset, of the non-contact (direct) system for future cycles
(FF 12-17). While this example does not disclose the specific limitation at
issue, it does provide a reasonable basis to believe the O’Connor system is
inherently capable of adjusting operating parameters of the non-contact
system based on available closure position information from the contact
system. Best, 562 F.2d at 1254-55. Appellant has not shown the O’Connor
system is incapable of performing this function.
Second, O’Connor explicitly teaches,
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[I]f the non-contact system has once again failed to
register an obstacle, but the contact-based system
has exhibited a significantly slower motor rotation
rate or a closure position which is short of the fully
closed position within the aperture, an obstacle
detection may be recognized, and the thresholds
for the non-contact system may be adjusted
incrementally in order to increase the sensitivity of
the non-contact system.
O’Connor 27, ll. 20-27 (see FF 15).

This passage teaches that if closure position (openable member
position information) obtained from the contact-based (indirect) system is
abnormal, due possibly to an obstacle, the thresholds (an operating
parameter) of the non-contact (direct) system may be adjusted to increase the
sensitivity of the non-contact (direct) system. In other words, the openable
member position information from the contact-based system is used to
demarcate and thus adjust threshold values for the non-contact system.
Accordingly, we find this disclosure corresponds with the limitation of, “an
indirect detector that indirectly detects the obstruction and outputs openable
member position information to the direct detector, wherein the openable
member position information is used to define operating parameters of the
direct detector” of claim 1.
Accordingly, we decide the first issue negatively. We affirm the
Examiner’s § 102(b) rejection of claims 1-4, 7, 14, 15, 19, 20, 22, 23, 25,
and 26 over O’Connor. Because Appellant advances the same arguments
regarding the § 103 rejection, we affirm the § 103 rejection of claims 5 and
16 over O’Connor in view of Breed for the same reasons.

CLAIM 6
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The Examiner found O’Connor teaches that the non-contact detector
detects obstructions according to the position information provided by the
contact detector (Ans. 4).
Regarding claim 6, Appellant contends O’Connor does not teach a
system in which a direct detector detects an obstruction according to
openable member position information provided by an indirect detector
(App. Br. 6, and 9-10). Appellant acknowledges that O’Connor discloses a
system in which a controller is able to dynamically adjust a direct (non-
contact) system’s parameters when contrary information is received from the
contact and non-contact system. However, Appellant contends, the
adjustment is made from measurements of the direct (non-contact) system,
not made according to position information of the closure (App. Br. 7).
ISSUE
Has Appellant shown the Examiner reversibly erred in finding
O’Connor disclosed a system in which a direct detector detects an
obstruction according to openable member position information provided by
an indirect detector?
FACTUAL FINDINGS & PRINCIPLES OF LAW
We rely on the factual findings and principles of law noted above.

ANALYSIS
Based on Merriam-Webster’s dictionary, something is “in accord
with” or is “according to” something, if it is consistent or in harmony with
something (FF 23). O’Connor points out that inputs from both the direct and
indirect detection systems may be utilized over the entire range of closure
travel, or may be invoked only within a specific portion of the range of
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closure travel. Either or both of the constituent systems may be used to
ascertain the location of the closure (FF 16). In other words, O’Connor
teaches the outputs from the direct and indirect detection systems are
complementary and may be used either together or separately in detecting
either the position of the openable member position or if an obstruction is
present (FF 17).
In fact, O’Connor discloses that when the closure position is sensed
by the contact-based system (i.e., the indirect detection system) to be short
of the fully closed position, obstacle detection may be recognized and the
threshold values of the non-contact system (i.e., the direct detection system)
may be adjusted to increase the sensitivity (FF 15). In other words, the
indirect system detects an obstacle and relays that information to the direct
system, such that direct system may detect an obstacle based upon the
openable member position information provided by the non-contact detector.
In traversing the rejection of claim 6, Appellant’s arguments focus on
O’Connor’s first embodiment wherein the non-contact or direct detector is
used alone over certain portions of the window opening (App. Br. 6 and 9-
10). However, Appellant does not address the Examiner’s reliance on
O’Connor’s hybrid system embodiment that utilizes the non-contact and
contact detectors over the entire range of closure travel (Ans. 4). The
controller 202 of the hybrid system, which can also be the direct system
controller, may have associated with it a memory for storing threshold
values for both systems and the appropriate actions to be taken depending
upon which thresholds are achieved (FF 19). Also, the controller 202
receives input from both systems and can detect obstacles based on the
position information from both systems. (FF 19). Thus, the direct system,
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by its controller serving dual roles, can operate according to position
information received from the indirect system.
For both the foregoing reasons, we decide the fourth issue negatively.
We affirm the Examiner’s § 102 rejection of claims 6 and 17 over
O’Connor.

CLAIM 8
Regarding claim 8, Appellant contends that O’Connor does not
disclose the step of detecting a light distribution along a closing line of the
openable member (App. Br. 8).
ISSUE
Has Appellant shown the Examiner reversibly erred in finding
O’Connor discloses a method having a step of detecting a light distribution
along a closing line of the openable member?
FACTUAL FINDINGS & PRINCIPLES OF LAW
We rely on the factual findings noted above. In addition to the principles of
law noted above, the initial burden of establishing a prima facie basis to
deny patentability to a claimed invention rests upon the examiner. Ex parte
Levy, 17 USPQ2d 1461, 1463-64 (BPAI 1990) citing, In re Piasecki, 745
F.2d 1468, 223 USPQ 785 (Fed.Cir. 1984). In relying upon the theory of
inherency, the examiner must provide a basis in fact and/or technical
reasoning to reasonably support the determination that the allegedly inherent
characteristic necessarily flows from the teachings of the applied prior art.
Id.
ANALYSIS
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The Examiner stated in the Answer, as to “[c]laims 7-9 and 21-23:
[t]he method steps are inherent in the product structure discussed above
regarding claims 1-4, 6, and 18-20. Further discussion is omitted.” and
“Claims 12 and 13: O’Connor et al. addresses all the limitations of claims 7-
9, in addition to disclosing that a predetermined threshold has been stored in
memory to adjust the difference between the energy levels when an obstacle
is detected” (Ans. 4).
We do not find the Examiner’s argument persuasive because the claim
8 limitation is for a step of detecting a light distribution along a closing line.
The Specification clarifies the meaning of “light distribution.” As shown in
Fig. 2, the Specification discloses a histogram 22 of light intensity (y-axis)
for positions along the window edge 10 (FF 5, 6). The distribution is created
by use of 10 pixels in each row of a 128 x 128 pixel CCD sensor (FF 6).
From this discussion, we determine light distribution to be the amount of
light as a function of points along the length of the top edge, or closing line,
of the window opening.
In contrast, O’Connor relies on emitters which project an “energy
curtain” within the window aperture and a single fixed photo diode which
measures changes in the total intensity of reflected light across the entire
window opening. As noted, an obstacle placed anywhere in the curtain
changes the reflected portion of the curtain, which is detected by the receiver
(FF 13, 14). We find nothing explicitly or inherently taught in O’Connor
which teaches of a step of detecting a distribution of light along the closing
line and the Examiner has not set-forth a basis-in-fact or technical reasoning
to support a finding that O’Connor inherently discloses the claim 8 feature.
O’Connor teaches only detecting the net total light reflected within the area
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of the window opening, regardless of the position of an obstacle with respect
to the closing line of the window opening.
Accordingly, we decide the second issue affirmatively. We reverse
the Examiner’s § 102 rejection of claims 8-13 over O’Connor.

CLAIM 18
Appellant contends O’Connor does not disclose a system in which the
operation of a direct detector is adapted according to the openable member
position information from an indirect detector (see App. Br. 10).
ISSUE
Has Appellant shown the Examiner reversibly erred in finding
O’Connor discloses a system in which a direct controller is adapted
according to the position information from an indirect detector?
FACTUAL FINDINGS & PRINCIPLES OF LAW
We rely on factual findings and principles of law noted above.
ANALYSIS
We begin our analysis by construing the claim 18 phrase “adapted
according to.” Neither party explicitly proffers a definition of the claim
phrase. We do not find an explicit or implicit definition of “adapted
according to” in the Specification.
Merriam-Webster’s dictionary defines adapt as “to make fit (as for a
specific or new use or situation) often by modification” (FF 22). Merriam-
Webster’s dictionary further defines accord as, “to be consistent or in
harmony: agree” (FF 23). We therefore construe the claim phrase “adapted
according to” as made to fit, such as by modification, so as to be consistent
or in harmony with the openable member position information. Having
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properly construed the claim phrase, we now address Appellant’s arguments
regarding claim 18.
We already found above under the first issue that O’Connor teaches a
direct detector, the operating parameters of which are defined by openable
member position information from an indirect detector. In fact, O’Connor
plainly discloses that the openable member position information from the
indirect detector (i.e., the contact detector) is used to adjust the threshold
values for the direct detector (i.e., the non-contact detector). Accordingly,
O’Connor teaches modifying the threshold values of the direct detector to
agree with the position information provided by the indirect detector (i.e.,
the non-contact detector) (FF 15).
Accordingly, we decide the third issue negatively. We affirm the
Examiner’s § 102 rejection of claims 18, 21, and 24 over O’Connor.

ORDER
The rejection of claims 1-4, 6, 7, 14, 15, and 17-26 under
§ 102(b) over O’Connor is AFFIRMED.
The rejection of claims 8-13 under § 102(b) over
O’Connor is REVERSED.
The rejection of claims 5 and 16 under § 103(a) over
O’Connor in view of Breed is AFFIRMED.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1) (2008).

AFFIRMED-IN-PART

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