Ex Parte Schadeck

Patent Trial and Appeal Board

Mar 19, 2018

13671066 (P.T.A.B. Mar. 19, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/671,066 11/07/2012
20151 7590 03/21/2018
HENRY M FEIEREISEN, LLC
HENRY M FEIEREISEN
708 THIRD A VENUE
SUITE 1501
NEW YORK, NY 10017
FIRST NAMED INVENTOR
Michael Schadeck
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.
SCHAD ECK 9875
EXAMINER
LANG, MICHAEL DEAN
ART UNIT PAPER NUMBER
3668
NOTIFICATION DATE DELIVERY MODE
03/21/2018 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):
INFO@FEIEREISENLLC.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL SCHADECK
Appeal2016-002039
Application 13/671,066 1
Technology Center 3600
Before ANNETTE R. REIMERS, JILL D. HILL, and ERIC C. JESCHKE,
Administrative Patent Judges.
JESCHKE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant seeks review under 35 U.S.C. § 134(a) of the Examiner's
decision, as set forth in the Final Office Action dated December 5, 2014
("Final Act."), and as further explained in the Advisory Action dated April
23, 2015, rejecting claims 1-22. The record includes a transcript of the oral
hearing held on February 6, 2018 ("Tr."). We have jurisdiction under
35 U.S.C. § 6(b).
We reverse.
1 AUDI AG ("Appellant") is the applicant as provided in 37 C.F.R.
§ 1.46 and is identified as the real party in interest. Appeal Br. 2.
Appeal 2016-002039
Application 13/671,066
BACKGROUND
The disclosed subject matter "relates to a [ m ]ethod for operating a
vehicle system of a motor vehicle and motor vehicle." Spec. i-f 2. Claim 1,
the sole independent claim, is reproduced below, with emphasis added, and
with bracketed letters added to identify each clause:
1. A Method for operating a vehicle system of
a motor vehicle for determining at least one state
variable which describes a state of a driver, in
particular an attention and/or fatigue of the driver,
comprising the steps of:
[a] verifying during an entire drive of the
motor vehicle, whether conditions of a condition
group are established;
[b] recording with sensors a reference data
set when all conditions of the condition group are
established, for as long as all said conditions are
established, wherein said reference data set
describes a reference state of the driver;
[ c] calibrating and/or adjusting at least one
operating parameter of the vehicle system as a
function of the reference data set; and
[ d] determining the at least one state
variable with the vehicle system having the
calibrated and/or adjusted at least one operating
parameter[.]
2
Appeal 2016-002039
Application 13/671,066
REJECTIONS
1. Claims 1, 2, 4, 5, 7, 8, 13, and 18-22 stand rejected under
35 U.S.C. § 102(b) as anticipated by Obradovich (US 2011/0160964 Al,
published June 30, 2011 ).
2. Claims 3, 6, 9-12, and 14--17 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Obradovich and Victor (US 2003/0181822
Al, published Sept. 25, 2003).
DISCUSSION
Rejection I -The rejection of claims 1, 2, 4, 5,
7, 8, 13, and 18-22 under 35 US.C. § 102(b)
Independent claim 1 recites, among other steps, "calibrating and/ or
adjusting at least one operating parameter of the vehicle system as a function
of the reference data set." Appeal Br. 7 (Claims App.). In the Final Office
Action, the Examiner quoted this limitation, cited paragraphs 54 to 58 of
Obradovich, and stated "when the ambient temperature is in a steady state
the processor takes readings from the first thermo-sensor." Final Act. 3. In
the Answer, the Examiner states: "Obradovich discloses that a cognitive test
can be triggered, i.e. adjusting of the operation of the cognitive test, if the
driver's body temperature as recorded by the sensors rises above the usual
reference state." Ans. 2. 2
Appellant argues that "Obradovich does also not disclose step c) ...
of claim 1." Appeal Br. 5. Specifically, Appellant argues that "the
2 Although the Examiner references paragraph 58 of Obradovich
regarding this finding, the subject matter discussed appears to refer to
paragraph 56. We consider the Examiner's reference to paragraph 58 as a
typographical error.
3
Appeal 2016-002039
Application 13/671,066
triggering of the cognitive test in Obradovich on its face does not involve
this claimed step" because "Obradovich does not disclose that an operating
parameter of the vehicle system is calibrated and/or adjusted as a function of
the reference data set." Reply Br. 2.
We agree with Appellant that the record here does not support the
Examiner's finding that Obradovich discloses step (c). As noted by
Appellant, the Examiner "intends to associate the triggering of the cognitive
test in Obradovich with the step of claim 1 of calibrating and/or adjusting at
least one operating parameter of the vehicle system as a function of the
reference data set"-i.e., step (c). Reply Br. 2; see also Obradovich i-f 56
("The aforementioned cognitive test may be triggered from time to time
while a user is driving. For example, it may be triggered by an unusual rise
of the body temperature of the user."). The Examiner has not, however,
adequately identified the "operating parameter" (as recited in step ( c)) in the
relied-upon discussion in Obradovich. As noted above, in the Final Office
Action, the Examiner quoted step (c) and cited paragraphs 54 through 58 of
Obradovich. See Final Act. 3. And in the Answer, the Examiner states:
"Obradovich discloses that a cognitive test can be triggered, i.e. adjusting of
the operation of the cognitive test." Ans. 2. Neither of these statements
identify an "operating parameter" with sufficient clarity.
Moreover, to the extent the Examiner implicitly identifies the
triggering of the "cognitive test" in Obradovich-i.e., whether the "cognitive
test" is on or off-as the recited "operating parameter of the vehicle
system," we do not consider a binary, on/off selection to satisfy the
"adjusting" aspect of step ( c ). Indeed, such an interpretation of "adjusting"
is inconsistent with the Specification. See In re Smith Int'!, Inc., 871 F.3d
4
Appeal 2016-002039
Application 13/671,066
1375, 1382-83 (Fed. Cir. 2017) (stating that the "broadest reasonable
interpretation in light of the specification ... is an interpretation that
corresponds with what and how the inventor describes his invention in the
specification, i.e., an interpretation that is 'consistent with the specification"'
(quoting In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997)).
In light of the Specification, "adjusting" at least one operating
parameter means revising an existing value. See, e.g., Spec. i-f 4 ("For
example, when a high level of fatigue of the driver is detected, a suggestion
to take a break can be issued and/or operating parameters of other vehicle
systems can be adjusted to the reduced alertness of the driver." (emphasis
added)), i-f 25 ("In particular, always the last recorded reference data set can
be observed for the (after)-calibration and/or for the setting or adjustment of
at least one operating parameter, wherein a previously set value can be
carried over in a weighted manner."). This construction is also consistent
with extrinsic evidence. See, e.g., New Oxford American Dictionary 20
(Angus Stevenson & Christine A. Lindberg eds., 3rd ed. 2010) (defining
"adjust" as to "alter or move (something) slightly in order to achieve the
desired fit, appearance, or result").
The "triggering" of the "cognitive test" in Obradovich (see, e.g., i-f 56)
does not revise an existing value, but rather activates an entirely new process
or operation. See Tr. 5 :21-24 ("[T]he triggering is just an activation. It is
not -- there is not an adjustment. Nothing is- it's just being turned on or
off, right, as the cognitive test is just being activated or triggered, without
anything happening to it, any calibration or adjusting of operating
parameters. It's just being turned on .... "). As such, the "triggering" in
Obradovich does not fall within the scope of "adjusting" in step ( c ).
5
Appeal 2016-002039
Application 13/671,066
For these reasons, we do not sustain the rejection of claim 1, or the
rejection of claims 2, 4, 5, 7, 8, 13, and 18-22, which depend from claim 1. 3
Rejection 2 - The rejection of claims 3, 6, 9-12,
and 14-17 under 35 US.C. § 103(a)
Claims 3, 6, 9-12, and 14--17 depend from claim 1. Appeal Br. 7-10
(Claims App.). The Examiner's added reliance on Victor does not remedy
the deficiencies in the Rejection based on Obradovich, discussed above.
Thus, for the same reasons discussed above, we do not sustain the rejection
of claims 3, 6, 9-12, and 14--17.
DECISION
We reverse the decision to reject claims 1, 2, 4, 5, 7, 8, 13, and 18-22
under 35 U.S.C. § 102(b) and we reverse the decision to reject claims 3, 6,
9-12, and 14--17 under 35 U.S.C. § 103(a).
REVERSED
3 Although not presented in the Claims Appendix in the Appeal Brief,
claims 21 and 22 are pending and addressed as part of Rejection 1. See
Final Act. 1 (Office Action Summary), 3 (claim 21), 6 (claim 22); see also
Appeal Br. 2 and 3 (listing claims 21 and 22 in Rejection 1 ). At oral
argument, a representative for Appellant stated that claims 21 and 22 were
pending. Tr. 7:8-16.
6