Ex Parte Mollon

Board of Patent Appeals and Interferences

Jun 5, 2009

10463731 (B.P.A.I. Jun. 5, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ERIC L. MOLLON
____________

Appeal 2009-002948
Application 10/463,731
Technology Center 2600
____________

Decided:1 June 5, 2009
____________

Before KENNETH W. HAIRSTON, JOHN A. JEFFERY, and
BRADLEY W. BAUMEISTER, Administrative Patent Judges.

HAIRSTON, Administrative Patent Judge.

DECISION ON APPEAL

1 The 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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Application 10/463,731

2
Appellant appeals under 35 U.S.C. § 134 from a final rejection of
claims 1 to 9. Although Appellant initially indicates that claims 1 to 9 are
being appealed (App. Br. 1 and 2), Appellant thereafter states in the grounds
of rejection to be reviewed on appeal that only claims 1, 5 to 7, and 9 are
subject to our review (App. Br. 4). Appellant’s arguments are consistent
with the decision to only present arguments for the rejections of claims 1, 5
to 7, and 92 (App. Br. 4 to 7; Reply Br. 1 to 3). We have jurisdiction under
35 U.S.C. § 6(b).
We will sustain the indefiniteness rejection of claim 9 and the
obviousness rejection of claims 1, 5 to 7, and 9 based upon the teachings of
Sugasawa and Nakao. We will sustain pro forma the obviousness rejections
of claims 2 to 4 and 8, as well as the obviousness rejection of claim 9 based
upon the teachings of Dougherty because of the lack of a response by
Appellant.
In the described and claimed invention, Appellant determines a
roughness value based upon sensed motion of a suspension component
within a suspension system of a moving vehicle. The roughness value is
transformed into a volume boost, and the volume boost is added to the
volume level of an audio system set by the occupant of the vehicle to
provide control of the audio gain (Figs. 1 and 2; Spec. 2 to 5; Abstract).

2 Although Appellant presented arguments (App. Br. 7; Reply Br. 2 and 3)
directed to the obviousness rejection of claim 9 based upon the teachings of
Sugasawa and Nakao, Appellant failed to address the obviousness rejection
of claim 9 based upon the teachings of Dougherty. As indicated by the
Examiner (Ans. 2 and 3), Appellant likewise failed to address the
obviousness rejection of claims 2 and 8 based upon the teachings of
Sugasawa, Nakao, and Kato, and the obviousness rejection of claims 3 and 4
based upon the teachings of Sugasawa, Nakao, and Chahabadi.
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Application 10/463,731

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Claim 1 is illustrative of the claimed invention, and it reads as
follows:
1. A method of controlling an audio gain of an audio
system in a motor vehicle, said method comprising the steps of:
a vehicle occupant manually setting a desired audio
volume level;
sensing motion of a suspension component within a
suspension system of said vehicle during travel of said vehicle;
determining a roughness value in response to said
motion;
transforming said roughness value into a volume boost,
said volume boost generally increasing with an increase in said
roughness value; and
adding said volume boost to said desired audio volume
level to provide said audio gain.
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Sugasawa US 4,479,237 Oct. 23, 1984
Kato US 5,208,866 May 4, 1993
Nakao US 5,651,072 Jul. 22, 1997
Dougherty US 5,872,852 Feb. 16, 1999
Chahabadi US 6,031,918 Feb. 29, 2000
The Examiner rejected claim 9 under the second paragraph of 35
U.S.C. § 112 for indefiniteness based on the ultimate step.
The Examiner rejected claims 1, 5 to 7, and 9 under 35 U.S.C. §
103(a) based upon the teachings of Sugasawa and Nakao.
Since Nakao uses either microphones or accelerometers in a moving
vehicle noise damping system, the Examiner contends that it would have
been obvious to one of ordinary skill in the art to substitute the
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accelerometers taught by Nakao for the microphone used in the audio sound
level control system described by Sugasawa. Appellant argues inter alia
(App. Br. 6) that “[n]othing in the cited references would lead one skilled in
the art to utilize road roughness as an estimate of the noise present.”

ISSUES
Indefiniteness
Has Appellant shown error in the Examiner’s indefiniteness rejection
of claim 9 based upon the ultimate step in this claim?
Obviousness
Has Appellant shown error in the Examiner’s finding that it would
have been obvious to the skilled artisan to use an accelerometer as taught by
Nakao in Sugasawa in lieu of a microphone?

FINDINGS OF FACT
Indefiniteness
1. Appellant’s disclosure states that “[t]he volume boost is added to
the desired audio volume level to provide the audio gain (Spec. 2; Abstract).
2. The ultimate step in Appellant’s originally filed claim 1 calls for
“adding said volume boost to said desired audio volume level to provide said
audio gain.”
3. Appellant’s originally filed claim 7 has “a summer for adding said
volume boost with said desired audio volume level to provide a gain level
for said audio system.”

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Obviousness
4. Sugasawa describes an automatic sound level control system that
varies the sound level of audio equipment in a moving motor vehicle based
upon a level of noise generated by the suspension of the vehicle and detected
by a microphone 4 (Fig. 1; col. 1, ll. 6 to 17).
5. Nakao describes the use of either microphones or accelerometers in
a moving vehicle noise/vibration damping system (Figs. 15, 27A, and 33;
col. 4, ll. 24 to 32; col. 12, ll. 41 to 54; col. 16, ll. 3 to 24).
6. Appellant, like Nakao, uses acceleration sensors to detect vertical
acceleration of the moving vehicle body (Spec. 3 and 4; col. 18, ll. 56 to 60).

PRINCIPLES OF LAW
Indefiniteness
The test for indefiniteness under the second paragraph of 35 U.S.C. §
112 is whether “those skilled in the art would understand what is claimed
when the claim is read in light of the specification.” Orthokinetics, Inc. v.
Safety Travel Chairs, Inc., 806 F.2d 1565, 1576 (Fed. Cir. 1986).
Obviousness
“The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.”
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007).

ANALYSIS
Indefiniteness
When we turn to Appellant’s disclosure for an understanding of the
ultimate claim 9 step of “applying said volume boost to said audio gain,” we
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find that the step has no support in the originally filed disclosure, and is
counter to what is set forth in the disclosure (Findings of Fact 1 to 3). When
claim 9 is read in light of the specification, the skilled artisan would
understand that the ultimate step in claim 9 is not reflective of what is
described in the disclosure (i.e., applying the volume boost to the desired
volume level set by the user of the audio system to thereby provide the audio
gain). See Orthokinetics, 806 F.2d at 1576. Thus, the Examiner correctly
concluded that claim 9 is indefinite because the ultimate step in claim 9 does
not correctly recite how to provide the audio gain.
Obviousness
Inasmuch as Sugasawa describes an automatic sound level control
system that varies the sound level of audio equipment in a moving motor
vehicle by detecting the level of noise generated by the suspension of the
moving vehicle with a microphone 4 (Findings of Fact 4), Nakao describes
the use of either microphones or accelerometers in a moving vehicle
noise/vibration damping system (Findings of Fact 5), and Appellant, like
Nakao, uses acceleration sensors to detect vertical acceleration of the
moving vehicle body (Findings of Fact 6), we agree with the Examiner (Ans.
4 and 5) that
it would have been obvious to one having ordinary skill in the
art at the time the invention was made to modify Sugasawa with
the teaching of Nakao to utilize a noise detector such as an
acceleration senor [sic, sensor] to detect the driving noise of the
engine or suspension of the motor vehicle.
See KSR Int’l, 550 U.S. at 416.
Appellant’s argument (App. Br. 6; Reply Br. 1 and 2) that neither the
accelerometer nor the microphone of Nakao is capable of characterizing
road roughness is entitled to little, if any, weight since the Examiner relied
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on Sugasawa for a teaching of characterizing road roughness via the sensing
of movement of the suspension via a microphone. In summary, the
Examiner’s obviousness rejection of claims 1, 5 to 7, and 9 based upon the
teachings of Sugasawa and Nakao is sustained.
As indicated supra, the following rejections by the Examiner are
sustained pro forma because of the lack of a response by Appellant: (1) the
obviousness rejection of claims 2 and 8 based upon the teachings of
Sugasawa, Nakao, and Kato; (2) the obviousness rejection of claims 3 and 4
based upon the teachings of Sugasawa, Nakao, and Chahabadi; and (3) the
obviousness rejection of claim 9 based upon the teachings of Dougherty.

CONCLUSIONS OF LAW
Appellant has not shown that the Examiner erred in rejecting claim 9
for indefiniteness based upon the ultimate step of the claim.
Appellant has not demonstrated that the Examiner erred in rejecting
claims 1, 5 to 7, and 9 for obviousness based upon the use of an
accelerometer as taught by Nakao in lieu of a microphone as used by
Sugasawa.
As a result of Appellant’s silence, Appellant has not demonstrated any
error in the Examiner’s obviousness rejections of claims 2 to 4 and 8, and in
the Examiner’s alternative obviousness rejection of claim 9 based upon the
teachings of Dougherty.

ORDER
The Examiner’s indefiniteness rejection of claim 9 is affirmed.
The Examiner’s obviousness rejections of claims 1 to 9 are affirmed.
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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)(iv).

AFFIRMED

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MARK L. MOLLON
36270 DARDANELLA
LIVONIA MI 48152