Ex Parte Mizoguchi et al

Patent Trial and Appeal Board

Aug 29, 2016

12312784 (P.T.A.B. Aug. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/312,784 0512912009
25944 7590 08/31/2016
OLIFF PLC
P.O. BOX 320850
ALEXANDRIA, VA 22320-4850
FIRST NAMED INVENTOR
Norihide Mizoguchi
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.
141721 8649
EXAMINER
LANE, NICHOLAS J
ART UNIT PAPER NUMBER
3657
NOTIFICATION DATE DELIVERY MODE
08/31/2016 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):
OfficeAction25944@oliff.com
jarmstrong@oliff.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SATOSHI TANAKA and
NORIHIDE MIZOGUCHI
Appeal2014-000613 1
Application 12/312,7842
Technology Center 3600
Before MICHAEL C. ASTORINO, PHILIP J. HOFFMANN, and
MATTHEWS. MEYERS, Administrative Patent Judges.
MEYERS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's final
rejection of claims 1-7, 9, and 10. We have jurisdiction under 35 U.S.C.
§ 6(b ). An oral hearing was held on May 24, 2016.
1 Our decision references Appellants' Appeal Brief ("Appeal Br.," filed
May 17, 2013) and Reply Brief ("Reply Br.," filed Sept. 18, 2013), and the
Examiner's Answer ("Ans.," mailed July 18, 2013) and Final Office Action
("Final Act.," mailed Oct. 22, 2012).
2 Appellants identify Komatsu Ltd., as the real party in interest
(Appeal Br. 1).
Appeal2014-000613
Application 12/312,784
We AFFIRM.
CLAIMED INVENTION
Appellants' "invention relates to a control device for a cooling fan for
a vehicle, and more particularly to a device that controls the rotation speed
of a hydraulically driven cooling fan for cooling an oil-cooled retarder
brake" (Spec. i-f 1 ).
Claim 1, reproduced below with added bracketed notations, is
illustrative of the subject matter on appeal:
1. A control device for a cooling fan in a vehicle, in which
cooling oil supplied to an oil-cooled brake is cooled by the
cooling fan, the control device comprising:
[a] cooling oil temperature detection means for detecting
a temperature of the cooling oil;
[b] first target rotation speed setting means for setting a
first target rotation speed of the cooling fan, the first target
rotation speed corresponding to the temperature of the cooling
oil·
'
[ c] brake operation means for operating the oil-cooled
brake;
[ d] brake operation amount detection means for detecting
a brake operation amount of the brake operation means;
[ e] second target rotation speed setting means for setting a
second target rotation speed of the cooling fan, the second target
rotation speed corresponding to the brake operation amount; and
[f] rotation speed control means for: i) adjusting a rotation
speed of the cooling fan so as to obtain a higher target rotation
speed of the first target rotation speed corresponding to the
cooling oil temperature detected by the cooling oil temperature
detection means and the second target rotation speed
corresponding to the brake operation amount detected by the
brake operation amount detection means, and ii) starting the
adjusting on a condition that the oil-cooled brake is operated, the
adjusting being performed while the oil-cooled brake is being
operated.
2
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Application 12/312,784
Appeal Br. (Claims. App.).
REJECTIONS3
Claims 1, 4, 6, 9, and 10 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Friedrich (US 6,546,899 B 1, iss. Apr. 15, 2003), Spielman
(US 7,036,640 B2, iss. May 2, 2006), and Dicke (US 6,435,144 Bl, iss.
Aug. 20, 2002).
Claim 2 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Friedrich, Spielman, Dicke, and Rose (US 7 ,421,840 B2, iss. Sept. 9, 2008).
Claim 3 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Friedrich, Spielman, Dicke, and Yamada (US 5,133,302, iss. July 28, 1992).
Claims 5 and 7 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Friedrich, Spielman, Dicke, and Zindler. (US 3,081,842, iss. Mar. 19,
1963).
ANALYSIS
Independent claim 1 and dependent claims 4, 6, 9, and 10
We are not persuaded by Appellants' argument that the Examiner
erred in rejecting independent claim 1 under 35 U.S.C. § 103(a) because the
combination of Friedman, Spielman, and Dicke fails to disclose or suggest a
"rotation speed control means," as recited by limitation [ f] of independent
claim 1 (see Appeal Br. 6-13; see also Reply Br. 2-8). Instead, we agree
with and adopt the Examiner's findings and required rationale to support the
combination as provided at pages 3-12 of the Answer and at pages 2--4 of
the Final Office Action (see Final Act. 3--4 (citing Friedman, col. 2, 11. 16-
21, col. 3, 11. 42--44, col. 4, 11. 1--4, col. 4, 11. 10-14, col. 4, 11. 29-37, col. 5,
3 The Examiner withdrew a rejection of claims 1-7, 9, and 10 under 3 5
U.S.C. § 112, second paragraph (see Ans. 2).
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Application 12/312,784
11. 40-45, col. 5, 11. 62---64, Fig. 1; Spielman, col. 4, 11. 63---66; Dicke, col. 2,
11. 22--41, Fig. 7, steps 112, 116, 118); see also Ans. 12 (citing Friedrich, col.
2, 11. 9-15, col. 5, 11. 55---64; Dicke, col. 4, 11. 54--56, col. 5, 11. 21-30, col. 6,
11. 54--58)). We add the following discussion for emphasis only.
Friedrich is directed to "a method for increasing the utilization of the
braking torque of a retarder in a motor vehicle" and "conducting away heat
generated in the retarder during the braking operation using a coolant"
(Friedrich, col. 1, 11. 8-12). Friedrich discloses that its cooling system
includes at least one "switched fan," "switched thermostat," "coolant pump,"
and "bypass valve in the cooling circuit" (id. at col. 1, 11. 49-53). Friedrich
identifies
maximum possible level of braking torque can be increased by
virtue of the fact that a switched fan, for example that of the
vehicle radiator, is connected into the circuit by the retarder
electronics when the retarder switch-on instruction is present, as
a result of which the efficiency of the cooling system is
increased.
(Id. at col. 2, 11. 9-15). In this regard, Friedrich discloses
it is advantageously provided that in the case of multi-step fans
or infinitely adjustable fans the actuation of the fan is carried out
as a function of the requested retarder braking power, for
example the selected retarder braking level. In principle, the fan
according to the invention operates with a high rotational speed
at high retarder braking levels, whereas at low retarder braking
levels the fan is either entirely enabled or runs with only a
reduced rotational speed.
(Id. at col. 2, 11. 27-35; see also id. at col. 4, 11. 29-37). Friedrich further
discloses that its fan is switchable based on different retarder operating
states, e.g., "switched-on retarder, switched-off retarder, braking level of the
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Appeal2014-000613
Application 12/312,784
retarder, is detected ... by the sensor 22 or by the retarder operator
lever ... " (id. at col. 3, 1. 65 - col. 4, 1. 4).
Friedrich also discloses that its system "control[ s] an output level of
the fan in relation to a coolant temperature" (id. at col. 5, 11. 62---64; see also
id. at col. 6, 1. 67 - col. 7, 1. 3). In this regard, Friedrich describes that its
"thermostat 44" can be configured as a 3/2-way in "the coolant circuit of the
vehicle cooling system to be switched as a function of retarder operating
states" (see id. at col. 2, 11. 36-40; see also id. col. 3, 11. 49-52). More
particularly, Friedrich discloses
[i]f the switch-over valve 44 is in the bypass position and the heat
is being conducted past the radiator via the bypass 40, said
switch-over valve 44 can, like the fan 15, be activated so that the
coolant is conducted through the radiator 5. Of course, in a
particular advantageous refinement, it is possible to co-ordinate
the activation of the switch-over valve 44 and thus the fan 15. In
this way, for example, the switch-over valve 44 can be switched
to a setting in which there is a flow through the radiator 5 and the
rotational speed of the fan 15 is then increased. If the requested
braking power of braking torque drops below a specific value,
the fan 15 can firstly be switched off. The switch-over valve 44
is not switched to bypass mode again unit the retarder is
completely switched-off.
(Id. at col. 4, 11. 15-28) (underlining added).
Spielman is directed to "a brake cooling system that uses at least one
hydraulic pump that supplies cooling oil to the brakes" (Abstract).
Spielman's system includes "[a] hydraulic fan assembly [which] is provided
to circulate air past the air-oil cooler assembly, a fan of the fan assembly
being driven by oil exiting the outlet of the air-oil cooler assembly" (id. at
col. 2, 11. 33-36). Spielman further discloses "a thermal by-pass valve 29"
which "is temperature regulated based on the temperature of the oil in the
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Application 12/312,784
reservoir 31" wherein "[i]f the oil is at a certain temperature, e.g., 100° F.,
the valve opens, and oil passes to the adjustable control valve 33" (id. at col.
4, 11. 62---66).
Dicke is directed to "a method for controlling the speed of a fan in a
work machine" (Dicke, col. 2, 11. 22-23). More particularly, Dicke discloses
sensing a temperature in the engine compartment of the work
machine, determining a fan speed based upon the temperature
sensed in the engine compartment, sensing the operation of the
heat transfer device, determining a fan speed based upon the
operation of the heat transfer device, comparing the fan speed
determined in the step of determining a fan speed based upon the
temperature sensed in the engine compartment with the fan speed
determined in the step of determining a fan speed based upon the
operation of the heat transfer device, and setting the speed of the
fan to the higher of the fan speeds determined in the step of
determining a fan speed based upon the temperature sensed in
the engine compartment and the step of determining a fan speed
based upon the operation of the heat transfer device.
(Id. at col. 2, 11. 27--41 ). Dicke identifies an "important and ever increasing
need in work machines is engine enclosure ventilation in order to cool and
maintain the temperature of the engine compartment below the critical
temperature requirements of the various components installed therein" (id. at
col. 1, 11. 53-56). In this regard, Dicke discloses
[a]lthough the present fan application is disclosed in operation
with a heat transfer device associated with a typical air
conditioning system, it is recognized and anticipated that heat
transfer device 14 may be any one of a plurality of different types
of heat exchangers utilized in a work machine such as an engine-
oil cooling core or a hydraulic-fluid cooling core, and the present
fan application can be adapted to cool the same.
(Id. col. 3, 11. 33--40).
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Appeal2014-000613
Application 12/312,784
Appellants first argue that the combination of Friedman, Spielman,
and Dicke fails to disclose or suggest the "rotation speed control means," as
recited by limitation [ f] of independent claim 1,
because Friedrich considers using coolant temperature only
when the retarder is not operated. Therefore, one skilled in the
art would not have modified Friedrich to adjust a rotation speed
of the cooling fan so as to obtain a higher target rotation speed or
to start/perform the adjustment when the retarder is operated.
(Appeal Br. 7-8; see also Reply Br. 2-5). However, Appellants' argument
is not persuasive at least because independent claim 1 is rejected as
unpatentable over the combination of Friedman, Spielman, and Dicke, and
not over Friedrich alone. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed.
Cir. 1986) ("Non-obviousness cannot be established by attacking the
references individually where the rejection is based upon the teachings of a
combination of references.").
Here, as the Examiner points out
Dicke was relied upon as disclosing adjusting a rotation speed of
a cooling fan, when a heat generating device is operated, so as to
obtain the higher fan speed of ( 1) a fan speed corresponding to
an operation amount of a heat generating device; and (2) a fan
speed corresponding to a coolant temperature of a coolant of the
heat generating device. Therefore, the disclosure of Friedrich is
primarily relevant as to whether one of ordinary skill in the art
would have considered modifying Friedrich in view of Dicke.
(Ans. 3.) The Examiner, thus, relies on Friedrich to disclose a "coolant
temperature detection means," "first target rotation speed setting means,"
"brake operation means," "brake operation amount detection means," and
"second target rotation speed setting means," (see Final Act. 3--4), but turns
to Dicke, not Friedrich, to address the "rotation speed control means," as
recited by limitation [ f] of independent claim 1 (see id.).
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Appeal2014-000613
Application 12/312,784
Appellants next argue that the combination of Friedman, Spielman,
and Dicke fails to disclose or suggest the "rotation speed control means," as
recited by limitation [ f] of independent claim 1, because "Spielman and
Dicke both fail to disclose or suggest using a braking operation to control a
cooling fan" (Appeal Br. 8). More particularly, Appellants argue
Spielman only considers the temperature of cooling oil and
Dicke only considers engine temperature and the temperature of
a condenser core for a typical air conditioner. Therefore, one
skilled in the art would not have modified Friedrich to consider
both a brake operation amount and oil temperature based on the
teachings of Spielman and Dicke.
(Id. at 8-9). However, Appellants' argument is again not persuasive at least
because independent claim 1 is rejected as unpatentable over the
combination of Friedman, Spielman, and Dicke, and not Spielman and Dicke
alone. See In re Merck & Co., 800 F .2d at 1097. Here, the Examiner relies
on Friedrich as disclosing "both a brake operation amount and a coolant
temperature for setting a fan speed" (Ans. 7 (citing Friedrich; col. 5; 11. 55-
64)), but points out that Friedrich does not disclose "adjusting the fan speed
to obtain the higher of the two fan speeds when the retarder brake is
operated" (Ans. 7).
We also are not persuaded of error by Appellants' argument that "[i]t
would not have been obvious to try to modify Friedrich based on Dicke
because Dicke considers different parameters (AC fan speed and ET fan
speed)" (Appeal Br. 10-11; see also Reply Br. 5-7). Instead, we agree with
the Examiner that "Dicke discloses determining a fan speed based on ( 1) an
operation amount of a heat generating device (AC system); or (2) a coolant
temperature (air in the engine compartment)" (Ans. 9; see also Dicke, col. 2,
11. 28-32, col. 4, 11. 54--56, col. 5, 11. 21-30).
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Application 12/312,784
Appellants further argue that Friedrich is directed to "using a cooling
fan 15 to cool radiator fluid passing through a radiator" (Reply Br. 5) while
Dicke is directed to "a fan 10 that cools a heat transfer device such as a
refrigerant condenser core 14 associated with a typical air conditioning
system" (id.), and as such, one of ordinary skill in the art would not be
motivated to combine Friedrich and Dicke absent hindsight reasoning (see
id. at 6-7; see also Appeal Br. 12-13). However, we agree the Examiner
claim 1 is directed toward "[a] control device for a cooling fan in
a vehicle". Both Friedrich and Dicke disclose a control device
for a cooling fan in a vehicle, and both seek to improve the
efficiency of the cooling fan. Therefore, teachings of Dicke
would have been recognized an appreciated by one of ordinary
skill in the art as being relevant to improving "[a] control device
for a cooling fan in a vehicle."
(Ans. 11-12).
To the extent Appellant seeks an explicit suggestion or motivation in
the reference itself, this is not the law. See KSR Int 'l Co. v. Teleflex Inc.,
550 U.S. 398, 419 (2007). We find that the Examiner has provided an
"articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness" (see id. at 418 (citing In re Kahn, 441 F.3d 977,
988 (Fed. Cir. 2006)). On page 4 of the Final Action, the Examiner provides
the required rationale to support the combination. And, as our reviewing
court guides in KSR:
When a work is available in one field of endeavor, design
incentives and other market forces can prompt variations of it,
either in the same field or a different one. If a person of ordinary
skill can implement a predictable variation, § 103 likely bars its
patentability.
KSR, 550 U.S. at 417. We also note that Appellants' arguments do not
address whether the modification described by the Examiner is more than
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Application 12/312,784
the predictable use of prior art elements according to their established
functions, nor do Appellants specifically mention or contest the substance of
the Examiner's rationale. Instead, Appellants arguments are all based on the
mistaken belief that "Friedrich and Dicke do not consider the same
parameters" (Reply Br. 5; see also Appeal Br. 10-13) and are directed to
"different aspects of a vehicle" (Appeal Br. 10, 12-13).
Moreover, the Supreme Court has made clear that when considering
obviousness "the analysis need not seek out precise teachings directed to the
specific subject matter of the challenged claim, for a court can take account
of the inferences and creative steps that a person of ordinary skill in the art
would employ." See KSR, 550 U.S. at 418. Here, we agree with the
Examiner that
Friedrich and Dicke both consider the same parameters.
Specifically, Friedrich discloses determining a fan speed based
on ( 1) an operation amount of a heat generating device (retarder
brake system); or (2) a coolant temperature (coolant in the
radiator). Similarly, Dicke discloses determining a fan speed
based on ( 1) an operation amount of a heat generating device
(AC system); or (2) a coolant temperature (air in the engine
compartment). Therefore, both Dicke and Friedrich consider
similar parameters that would have been considered by one of
ordinary skill in the art when looking to improve the efficiency
of a cooling system.
(Ans. 9). Thus, Appellants' argument is not persuasive.
In view of the foregoing, we sustain the Examiner's rejection of
independent claim 1under35 U.S.C. § 103(a). For the same reasons, we
also sustain the Examiner's rejection of claims 4, 6, 9, and 10, which were
not separately argued.
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Application 12/312,784
Dependent claims 2, 3, 5, and 7
Appellants do not present any additional arguments in support of the
patentability of claims 2, 3, 5, and 7 (see Appeal Br. 6).
We are not persuaded, for the reasons outlined above, that the
Examiner erred in rejecting independent claim 1under35 U.S.C. § 103(a).
Therefore, we sustain the Examiner's rejections of claims 2, 3, 5, and 7
under 35 U.S.C. § 103(a) for the same reasons.
DECISION
The Examiner's rejections of claims 1-7, 9, and 10 under 35 U.S.C.
§ 103(a) are sustained.
AFFIRMED
11