Ex Parte Osborne

Patent Trial and Appeal Board

Nov 23, 2018

14953062 (P.T.A.B. Nov. 23, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/953,062 11/27/2015
28395 7590 11/27/2018
BROOKS KUSHMAN P.C./FG1L
1000 TOWN CENTER
22NDFLOOR
SOUTHFIELD, MI 48075-1238
FIRST NAMED INVENTOR
Kurt David Osborne
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.
83578811 4449
EXAMINER
HOLLOWAY III, EDWIN C
ART UNIT PAPER NUMBER
2683
NOTIFICATION DATE DELIVERY MODE
11/27/2018 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):
docketing@brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KURT DAVID OSBORNE
Appeal2018-005126
Application 14/953,062 1
Technology Center 2600
Before ST. JOHN COURTENAY III, LARRY J. HUME, and
JOYCE CRAIG Administrative Patent Judges.
COURTENAY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Examiner rejected claims 1-15. Appellant appeals from the final
rejection under 35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C.
§ 6(b ).
We affirm.
1 The real party in interest is Ford Global Technologies, LLC.
Appeal 2018-005126
Application 14/953,062
INVENTION
This invention relates to "communication of a vehicle liftgate position
between a vehicle and a garage door opener." Spec. ,r 1. Claim 1,
reproduced below, is representative of the claimed subject matter:
Representative Independent Claim 1
1. A vehicle system comprising:
a controller configured to, in response to rece1vmg a
request to open a rear enclosure of a vehicle and data indicating
that an object is behind the vehicle, transmit one or more signals
to open a door of a garage and inhibit opening the enclosure, and
in response to the data indicating an absence of objects behind
the vehicle, open the enclosure.
Rejections
A. Claims 1, 2, 6, and 7 are rejected under 35 U.S.C. § 103 as being
obvious over the combined teachings and suggestions of Van Wiemeersch
(US 2002/0074959 Al; published June 20, 2002) and King (US 6,559,775
B 1; issued May 6, 2003).
B. Claim 3 is rejected under 35 U.S.C. § 103 as being obvious over
the combined teachings and suggestions of Van Wiemeersch, King and Van
Lente et al. (US 5,614,885; issued Mar. 25, 1997) ("Van Lente").
C. Claims 4 and 5 are rejected under 35 U.S.C. § 103 as being obvious
over the combined teachings and suggestions of Van Wiemeersch, King and
Chutorash et al. (US 2010/0171588 Al; published Jul. 8, 2010)
("Chutorash").
D. Claims 8 and 12-14 are rejected under 35 U.S.C. § 103 as being
obvious over the combined teachings and suggestions of Oberhauser (US
2005/0107040 Al; published May 19, 2005) and Van Wiemeersch.
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Application 14/953,062
E. Claim 9 is rejected under 35 U.S.C. § 103 as being obvious over
the combined teachings and suggestions of Oberhauser, Van Wiemeersch,
and King.
F. Claim 10 is rejected under 35 U.S.C. § 103 as being obvious over
the combined teachings and suggestions of Oberhauser, Van Wiemeersch,
and Van Lente.
G. Claims 11 and 15 are rejected under 35 U.S.C. § 103 as being
obvious over the combined teachings and suggestions of Oberhauser, Van
Wiemeersch and Chutorash.
Claim Grouping
Based upon Appellant's arguments, we decide the appeal of rejection
A of claims 1, 2, 6, and 7 on the basis of representative independent claim 1.
Also based upon Appellant's arguments, we decide the appeal of rejection D
of claims 8 and 12-14 on the basis of representative independent claim 8.
We decide the appeal of the remaining dependent claims, 3-5, 9-11, and 15,
not separately argued, infra. See 37 C.F.R. § 4I.37(c)(l)(iv).
ANALYSIS
We have considered all of Appellant's arguments and any evidence
presented. To the extent Appellant has not advanced separate, substantive
arguments for particular claims, or other issues, such arguments are waived.
See 37 C.F.R. § 4I.37(c)(l)(iv). We highlight and address specific findings
and arguments for emphasis in our analysis below.
Rejection A of Independent Claim 1 under§ 103
Issue: Under 35 U.S.C. § 103, did the Examiner err by finding the
cited combination of Van Wiemeersch and King teaches or suggests "in
response to receiving a request to open a rear enclosure of a vehicle and data
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Application 14/953,062
indicating that an object is behind the vehicle," transmitting "signals to
open" a garage door and also "inhibit opening" the rear enclosure of the
vehicle, within the meaning of representative claim 1 ?2
Regarding the contested claim 1 function of "transmit one or more
signals to open a door of a garage" Appellant admits that Van Wiemeersch
teaches inhibiting a request to open a rear enclosure of a car based on
detection of an object behind the car. Appellant agrees with the Examiner
that Van Wiemeersch does not teach or suggest the opening of a garage
door. App. Br. 2.
However, Appellant contends that King also does not teach
"transmitting a request to open a garage door responsive to a request to open
a rear enclosure if an object is detected behind the vehicle." Id. In
particular, Appellant urges:
[N]othing in King or Van Wiemeersch suggests that opening of
the garage door should be triggered by a request to open the rear
liftgate and data indicating that an object is behind the vehicle.
Rather, the art suggests that a user may simply open the garage
door before requesting the liftgate to open.
Reply Br. 2.
The Examiner finds King's transmitting signal that automatically
opens and closes the garage door without input from the user teaches or at
least suggests the disputed limitation. Final Act. 4. The Examiner finds an
artisan would have been motivated "to have included in Van Wiemeersch
2 We give the contested claim limitations the broadest reasonable
interpretation (BRI) consistent with the Specification. See In re Morris, 127
F.3d 1048, 1054 (Fed. Cir. 1997). See e.g., Spec. ,r 35 ("While exemplary
embodiments are described above, it is not intended that these embodiments
describe all possible forms encompassed by the claims.").
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Application 14/953,062
the limitation to transmit one or more signals to open a door of a garage in
view of King in order to automatically open and close the garage door
without input from the user." Id.
On this record, we are not persuaded the Examiner erred because
Appellant does not point to any evidence of record that shows combining the
Van Wiemeersch and King references in the manner proffered by the
Examiner (Final Act. 4) would have been "uniquely challenging or difficult
for one of ordinary skill in the art" or would have "represented an unobvious
step over the prior art." Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485
F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418). Appellant
has not identified knowledge gleaned only from the present application that
was not within the level of ordinary skill at the time the claimed invention
was made. See In re McLaughlin, 443 F.2d 1392 (CCPA 1971). Moreover,
Appellant has not provided any objective evidence of secondary
considerations ( e.g., unexpected results) which our reviewing court guides
"operates as a beneficial check on hindsight." Cheese Systems, Inc. v. Tetra
Pak Cheese and Powder Systems, Inc., 725 F.3d 1341, 1352 (Fed.
Cir. 2013).
Applying this reasoning here, and based upon our review of the
record, we find the Examiner set forth sufficient articulated reasoning with
rational underpinnings to support the proposed combination of Van
Wiemeersch and King. See Final Act. 4, Ans. 3-5. Further, we find the
Examiner provided sufficient evidence of a predictable result from
combining the familiar elements of Van Wiemeersch and King, which we
find outweighs any purported indicia of impermissible hindsight.
As explained in KSR, 550 U.S. at 420, it is error to assume that a
person of ordinary skill attempting to solve a problem will be led only to
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Application 14/953,062
those elements of the prior art designed to solve the same problem. Rather,
[ c ]ommon sense teaches ... that familiar items may have obvious uses
beyond their primary purposes, and in many cases a person of ordinary skill
will be able to fit the teachings of multiple patents together like pieces of a
puzzle .... A person of ordinary skill is also a person of ordinary creativity,
not an automaton. Id. at 420-21. Moreover, "neither the particular
motivation nor the avowed purpose of the [Appellant] controls" in an
obviousness analysis." Id. at 419:
On this record, we find Appellant has not shown that the invention as
recited in claim 1 is "more than the predictable use of prior art elements
according to their established functions" so as to be non-obvious under the
guidance of KSR, 550 U. S. at 417. Therefore, for the reasons discussed
above, Appellant has not provided persuasive arguments supported by a
preponderance of the evidence to persuade us the Examiner erred.
Accordingly, for essentially the same reasons articulated by the
Examiner, and for the reasons discussed above, we sustain the Examiner's
rejection A of representative independent claim 1. Grouped claims 2, 6, and
7 (not separately argued) fall with claim 1. See Grouping of Claims, supra.
Rejection D of Independent Claim 8 under§ 103(a)
Issue: Under 35 U.S.C. § 103, did the Examiner err by finding the
cited combination of Van Wiemeersch and Oberhauser teaches or suggests
"in response to receiving a request to close a door of a garage and a signal
indicating that the rear access panel is open, close the rear access panel prior
to transmitting a signal to close the door," within the meaning of
representative independent claim 8?
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Appellant argues the cited references have "nothing to do with first
closing a rear enclosure before transmitting a request to close a garage
door." App. Br. 4.
Regarding independent claim 8, the Examiner finds an artisan would
have been motivated to have included in Oberhauser:
the controller in the vehicle and the controller configured to close
the rear access panel (hatch) in view of Van Wiemeersch to allow
remote, motorized, automatic control of the liftgate and directed
to the same problem of obstructing/colliding movement
(abstract). The door would obviously be closed (fig. 5) prior to
transmitting a signal to close the garage overhead door (fig. 6) in
order to avoid obstruction/collision as disclosed by Oberhauser.
Final Act. 8.
Thus, the Examiner concludes that Oberhauser's two doors -the
garage door and the car hatch door - eventually would need to be closed
and the hatch would obviously need to be closed first. Id. See also Ans. 6.
The Examiner's legal conclusion of obviousness is supported by a
preponderance of the evidence, because we find Oberhauser's control logic,
which tests both the hatch closed signal and the garage door, at least
suggests the disputed limitation. 3 Oberhauser, Fig. 11, ,r,r 28-29, 32-33.
Further, we find the Examiner provided sufficient evidence of a predictable
result from combining the familiar elements of Van Wiemeersch and
Oberhauser, and Appellant has not provided any evidence of secondary
considerations, such as unexpected results.
3
"' [T]he question under 3 5 USC 103 is not merely what the references
expressly teach but what they would have suggested to one of ordinary skill
in the art at the time the invention was made."' Merck & Co. v. Biocraft
Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) (quoting In re Lamberti, 545
F.2d 747, 750 (CCPA 1976)). (Emphasis added); see also MPEP § 2123.
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On this record, we find Appellant has not shown that the invention as
recited in claim 8 is anything "more than the predictable use of prior art
elements according to their established functions" so as to be non-obvious
under the guidance of KSR at 417. Therefore, for the reasons discussed
above, Appellant has not provided arguments supported by a preponderance
of the evidence to persuade us the Examiner erred.
Accordingly, for essentially the same reasons articulated by the
Examiner, we sustain the Examiner's rejection D of representative
independent claim 8. Grouped claims 12-14 (not separately argued) fall
with claim 8. See Grouping of Claims, supra.
Rejections B, C, E, F and G of Dependent Claims 3-5, 9-11, and 15
As Appellant has not separately argued any of the dependent claims
3-5, 9-11, and 15, as rejected under Rejections B, C, E, F, and G, we also
sustain the Examiner's rejections of those claims. See 37 C.F.R.
§ 4I.37(c)(l)(iv).
CONCLUSION
Based upon a preponderance of the evidence, and on this record, we
are not persuaded the Examiner erred in rejecting claims 1-15 under
35 U.S.C. § 103, as being obvious over the combined teachings and
suggestions of the cited references. See 3 7 C.F .R. § 41.3 7 ( c )( 1 )(iv).
DECISION
We affirm the Examiner's rejection of claims 1-15 under 35 U.S.C.
§ 103.
No time for taking any action connected with this appeal may be
extended under 37 C.F.R. § 1.136(a)(l). See 37 C.F.R. § 41.50(±).
AFFIRMED
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