Ex Parte Rauch

Patent Trial and Appeal Board

Dec 13, 2013

11511187 (P.T.A.B. Dec. 13, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte BRIAN JOSEPH RAUCH
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Appeal 2011-013440
Application 11/511,187
Technology Center 3700
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Before MICHAEL L. HOELTER, ANNETTE R. REIMERS and
BART A. GERSTENBLITH, Administrative Patent Judges.

HOELTER, Administrative Patent Judge.

DECISION ON APPEAL
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STATEMENT OF THE CASE
This is a decision on appeal, under 35 U.S.C. § 134(a), from a final
rejection of claims 1-28. App. Br. 3. We have jurisdiction under 35 U.S.C.
§ 6(b). We AFFIRM-IN-PART and enter a NEW GROUND OF
REJECTION pursuant to our authority under 37 C.F.R. § 41.50(b).

THE CLAIMED SUBJECT MATTER
The disclosed subject matter “relates generally to a training system for
a mobile vehicle.” Spec. para. [0001]. Independent claim 1 is illustrative of
the claims on appeal and is reproduced below:
1. A mobile vehicle, comprising
a chassis;
a traction device adapted to contact the ground and
propel the chassis;
a productive device which is operable to perform at least
one function;
an input device which is actuatable to control the
productive device;
a control system configured to operate the productive
device in response to an actuation of the input device; and
a controller operably coupled to the control system, the
controller being configurable in at least an operational mode
wherein the productive device is enabled to perform a first task
in response to the actuation of the input device and in a training
mode wherein the productive device is disabled to perform the
first task in response to the actuation of the input device, the
controller evaluating the actuation of the input device in the
training mode.

REFERENCES RELIED ON BY THE EXAMINER
Beam US 2003/0231199 A1 Dec. 18, 2003
Radke US 2006/0113121 A1 Jun. 1, 2006
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THE REJECTION ON APPEAL
1. Claims 1-28 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Radke and Beam. Ans. 4.

ANALYSIS
Appellant presents separate arguments for claims 1, 11, 13, 16, 23,
and 24. App. Br. 10-24. We address each such claim separately. The
remaining dependent claims, i.e., claims 2-10, 12, 14, 15, 17-22, and 25-28,
stand or fall with their respective parent claim. See 37 C.F.R.
§ 41.37(c)(1)(vii) (2011).
Claim 1
The Examiner relies on Radke for teaching a chassis, a traction
device, a productive device (i.e., bulldozer blade 22), an input device, a
control system, and a controller. Ans. 4-5. The Examiner, however,
acknowledges that Radke fails to disclose the controller configured as
claimed. Ans. 5. The Examiner relies on Beam for teaching such a
controller including “the controller evaluating the actuation of the input
device in the training mode” as claimed. Ans. 5. The Examiner concludes
that it would have been obvious “to have added the input and control system
of Beam to the invention of Radke in order to ensure safe operation[] of the
equipment.” Ans. 5.
Appellant contends that “the references fail to disclose or suggest a
controller that evaluates the actuation of the claimed input device” or, stated
another way, “the dozer produced by combining Radke and Beam would
lack a controller that evaluates the actuation of the claimed input device
(e.g., the controls that are ‘actuatable to control’ the blade 22) in a training
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mode, as recited in independent claim 1.” App. Br. 10-12. As can be seen,
Appellant focuses on the failure of Radke and Beam to teach a controller
that evaluates “the actuation of the input device in the training mode” as
claimed.
The Examiner references Beam’s paragraph [0006] for teaching the
evaluation of the input device while in the training mode. Ans. 5. Beam’s
paragraph [0006] discusses “one or more keys” that the user employs when
answering any question presented during training. This same paragraph also
ascertains “if the one or more answers meet a set of predetermined criteria.”
The limitation in question is directed to “evaluating the actuation of
the input device in the training mode” with the “input device” being defined
in claim 1 as “actuatable to control the productive device.” The Examiner
does not explain how the evaluation discussed in Beam’s paragraph [0006]
is an evaluation of the claimed “input device” nor is there any indication in
Beam’s paragraph [0006] that the answer key is the “input device” that
“controls the productive device” as claimed. We thus agree with Appellant
that the Examiner “omits essential elements needed for a prima facie
rejection of independent claim 1.” App. Br. 10. For this reason, we reverse
the Examiner’s rejection of claims 1-10 and 27.
Claim 11
Independent claim 11 closely tracks many of the limitations found in
claim 1 but notably lacks the “evaluating” limitation discussed supra. As
stated by Appellant, claim 11 is directed to “a computer system that
communicates with the claimed input device during the training session,
where the productive device is ‘operable to perform at least one function
through’ the claimed input device.” App. Br. 16. Appellant disputes that
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this is taught by the combination of Radke and Beam by assuming that the
claimed “input device” corresponds with Beam’s answer key 42. App. Br.
16, 17; Reply Br. 3. We agree with Appellant that Beam does not teach this
limitation based on Appellant’s reliance on answer key 42 as the claimed
“input device.” However, we are not convinced the Examiner is referencing
Beam’s buttons 42 as corresponding to the claimed “input device.” Ans. 10.
While the Examiner does not identify a specific reference numeral for
absolute certainty, the Examiner does identify the input device as being one
that “is actuatable to control, e.g. enable and disable, the production device.”
Ans. 10. In this regard, Beam describes “engine/system enable/disable
switch/relay 46 operable for selectively enabling and/or disabling the engine
or power system associated with the piece of machinery, the vehicle, the
powered system, or the like.” Beam para. [0017], see also para. [0006]. The
Examiner further references Beam para. [0017] when discussing claim 13,
which depends from claim 11. Ans. 9. In other words, Beam discloses
switch 46 that “is actuatable to control, e.g. enable and disable, the
production device” as found by the Examiner. Beam para. [0017]; Ans. 10.
Switch 46 is more reasonably construed as corresponding to the claimed
“input device which is actuatable to control the productive device” rather
than answer buttons 42. App. Br. 17; see also Reply Br. 3-5.
For example, when relying on answer button 42, Appellant contends
that “Beam does not disclose any interaction between the computer training
system 10 and the claimed input device.” App. Br. 16. However, when
addressing switch 46, Beam teaches that “[t]he operation-enabling training
and safety computer system 10 further includes an engine/system
enable/disable switch/relay 46.” Beam para. [0017]. Appellant also
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contends (relying on answer button 42) that Beam does not disclose that “the
productive device is ‘operable to perform at least one function through’ the
claimed input device” (App. Br. 16), yet when addressing switch 46, Beam
teaches that it is “operable for selectively enabling and/or disabling the
engine or power system associated with the piece of machinery, the vehicle,
the powered system, or the like,” Beam para. [0017]. Appellant does not
indicate how, in view of Beam’s disclosure, switch 46 fails to meet the
limitation of “at least one productive device which is operable to perform at
least one function through at least one input device” as claimed. See Ans.
10-11. In other words, Appellant does not explain how Beam’s productive
device can perform a function without first being “enabled” via switch 46.
Nevertheless, as previously indicated, the Examiner does not identify
Beam’s corresponding “input device” with any degree of absolute certainty.
Hence, the above rationale identifying Beam’s switch 46 as the
corresponding “input device” is not identical to that relied on by the
Examiner. Accordingly, we designate our affirmance of the Examiner’s
rejection as a New Ground of Rejection in order to afford Appellant a fair
opportunity to respond to the thrust of the rejection because the reasoning
upon which we rely to sustain the rejection of claim 11 differs somewhat
from the reasoning articulated by the Examiner. “Mere reliance by the
Board on the same type of rejection or the same prior art references relied
upon by the examiner, alone, is insufficient to avoid a new ground of
rejection where it propounds new facts and rationales to advance a rejection
none of which were previously raised by the Examiner.” In re Stepan Co.,
660 F.3d 1341, 1345 (Fed. Cir. 2011).
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Because claims 12, 14, and 15 depend from claim 11, this New Ground is
equally applicable to them as well.
Claim 13
Claim 13 depends from claim 11 and is also subject to the New
Ground of Rejection discussed supra. Nevertheless, claim 13 was separately
argued by Appellants (App. Br. 18) and we address this argument infra.
Claim 13 includes the further limitation wherein the training session
presented by the computer system is activated when the vehicle’s key is “in
an accessory position.” The Examiner specifically referenced Beam’s
paragraph [0017] as teaching this limitation. Ans. 9. Beam’s paragraph
[0017] discusses how the computer system “further includes a plurality of
indicator lights 48 (and/or indicator audio signals) operable for indicating
whether or not the engine or power system” is enabled or disabled.
Appellant does not dispute Beam’s teaching of providing visual and audio
indicators as above, but instead contends that “Beam does not disclose that
the computer training system is activated with a key, much less that the
computer training system is activated by positioning the key in an accessory
position.” App. Br. 18. Appellant’s Specification provides some guidance
as to the meaning of being “activated by positioning a key” to the effect that
“[e]xemplary user input devices include buttons, touch sensitive regions, a
keyboard, a mouse, and other suitable user input devices.” Spec. para.
[0027]. Appellant does not explain how a power switch, such as Beam’s
switch 46, fails to meet this definition. Furthermore, Appellant does not
provide any argument or evidence that a vehicle operator is unaware that a
device “in an accessory position” is not also accompanied by visual and
audio indicators as taught by Beam supra. Appellant’s arguments are not
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persuasive but nevertheless, as previously indicated, claim 13 is subject to
the New Ground of Rejection discussed supra, which affords Appellant an
opportunity to respond to that New Ground.
Claim 16
Independent method claim 16 is similar to apparatus claim 1 in that
claim 16 includes the limitation of a computer system that “evaluates the
actuation of the at least one input device during the training program.” For
similar reasons discussed supra, we do not sustain the Examiner’s rejection
of claim 16 or dependent claims 17-22.
Claim 23
Independent method claim 23 includes the step of “operating the
interactive training program by requesting an actuation of the input device.”
Appellant contends that “the references fail to disclose or suggest” this step
and as such, the Examiner “omits essential elements needed for a prima
facie rejection of independent claim 23.” App. Br. 22-23. Appellant repeats
previous statements and again addresses “button 42.” App. Br. 23. Because
our analysis of claim 11 applies equally to our consideration of Appellant’s
arguments responding to the Examiner’s rejection of claim 23, claim 23 is
likewise subject to the above New Ground of Rejection regarding the
identification of the claimed “input device.” Because claims 25, 26, and 28
depend from claim 23, these claims are likewise subject to the same New
Ground of Rejection.
Claim 24
Claim 24 depends from claim 23 and includes the further step of
“wirelessly sending an update to the training program to the mobile vehicle.”
The Examiner references Beam’s paragraph [0013] for this step, which
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discusses the wireless transmission of user codes and test results. Ans. 8.
Appellant contends that this paragraph “fails to disclose ‘wirelessly sending
an update to’ the computer training system.” App. Br. 24. Beam teaches “a
wireless communications device” such as a cell phone or a “Bluetooth-
enabled communications device” but is silent regarding the vehicle’s receipt
of updates to the training program. See, e.g., Beam para. [0013]. While the
Examiner’s reliance on Beam’s paragraph [0013] for teaching updates to the
training program is misplaced, we are also not aware of any expression by
the Examiner to the effect that it is even obvious to update a training
program. Ans. 8. For these reasons, we reverse the Examiner’s rejection of
claim 24.

DECISION
The Examiner’s rejection of claims 1-10, 16-22, 24, and 27 is
reversed.
The Examiner’s rejection of claims 11-15, 23, 25, 26, and 28 is
affirmed. We designate our affirmance as a New Ground of Rejection.
37 C.F.R. § 41.50(b) provides that, “[a] new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review.”
37 C.F.R. § 41.50(b) also provides that Appellant must, WITHIN
TWO MONTHS, exercise one of the following options:
(1) Reopen prosecution. Submit an appropriate amendment of the
claims so rejected or new evidence relating to the claims so rejected,
or both, and have the matter reconsidered by the examiner, in which
event the proceeding will be remanded to the examiner. . . .
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(2) Request rehearing. Request that the proceeding be reheard under
§ 41.52 by the Board upon the same record. . . . No time period for
taking any subsequent action in connection with this appeal may be
extended under 37 C.F.R. § 1.136(a)(l )(iv).
No time period for taking any subsequent action in connection
with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).

AFFIRMED-IN-PART; 37 C.F.R. § 41.50(b)

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