Ex parte Weishaupt

Board of Patent Appeals and Interferences

Jun 23, 1998

08169959 (B.P.A.I. Jun. 23, 1998)

1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today
(1) was not written for publication in a law journal and
(2) is not binding precedent of the Board.
Paper No. 11
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte WALTER WEISHAUPT
__________
Appeal No. 95-2730
Application 08/169,959
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HEARD: Jun. 9, 1998
__________
Before KRASS, FLEMING, and LEE, Administrative Patent Judges.
KRASS, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the final rejection of
claims 5 through 7, the only claims pending in the
application.
The invention is directed to an object sensing device for
motor vehicles. More particularly, the invention employs a
Appeal No. 95-2730
Application No. 08/169959
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dual mode sensor whereby, in a first, clear visibility, mode,
the system emits a warning signal only when either an object
is standing in the vehicle’s driving path or the object is
moving in the same direction as the vehicle but at a slower
speed and, in a second, poor visibility, mode, a warning
signal is emitted not only in the same situations described
with regard to the clear visibility mode, but also when an
object is determined to be coming toward the vehicle. The
dual mode is said to allow a driver more flexibility in
determining when it is actually necessary for a warning signal
to be emitted depending on the visibility mode selected.
Representative independent claim 5 is reproduced as
follows:
5. An object sensing device for a motor vehicle,
comprising at least one transmitter/receiver pair operatively
located in the motor vehicle to obtain a reflex signal from an
object situated in a driving direction of the motor vehicle
and having a first operating mode for clear visibility and a
second operating mode for poor visibility, wherein the at
least one transmitter/receiver pair is operatively configured
such that a signal emission occurs for the first operating
mode when an object is standing or is driving more slowly in
the driver's direction of the motor vehicle, but not when an
object comes toward the motor vehicle and, for the second
operating mode, when an object is standing or is driving more
slowly in the driver's direction of the motor vehicle and when
an object comes toward the motor vehicle.
No references are relied upon.
Appeal No. 95-2730
Application No. 08/169959
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Claims 5 through 7 stand rejected under 35 U.S.C. § 112,
first paragraph, as relying on a non-enabling disclosure.
Reference is made to the brief and answer for the
respective positions of appellant and the examiner.
OPINION
Compliance with the enablement clause of 35 U.S.C. § 112
requires that the written description must be sufficiently
full, clear, concise and exact to enable the artisan to
practice the claimed invention without resort to undue
experimentation. In re Strahilevitz, 668 F.2d 1229, 1232, 212
USPQ 561, 563-64 (CCPA 1982). The scope of enablement
provided by the disclosure must be commensurate with the scope
of protection sought by the claims. Phillips Petroleum Co. v.
U.S. Steel Corp., 673 F. Supp. 1278, 6 USPQ2d 1065, 1074 (D.
Del 1987), aff’d, 865 F.2d 1247, 1251, 9 USPQ2d 1461, 1464
(Fed. Cir. 1989).
To comply with the enablement clause of the first
paragraph of 35 U.S.C. § 112, the disclosure must adequately
describe the claimed invention so that the artisan could
Appeal No. 95-2730
Application No. 08/169959
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practice it without undue experimentation. In re Scarbrough,
500 F.2d 560, 566,
182 USPQ 298, 303 (CCPA 1974); In re Brandstadter, 484 F.2d
1395, 1407, 179 USPQ 286, 295 (CCPA 1973); In re Gay, 309 F.2d
769, 774, 135 USPQ 311, 316 (CCPA 1962). If the examiner had
a reasonable basis for questioning the sufficiency of the
disclosure, the burden shifted to the appellant to come
forward with evidence to rebut this challenge. In re Doyle,
482 F.2d 1385, 1392, 179 USPQ 227, 232 (CCPA 1973); In re
Brown, 477 F.2d 946, 950, 177 USPQ 691, 694 (CCPA 1973); In re
Ghiron, 442 F.2d 985, 992, 169 USPQ 723, 728 (CCPA 1971).
However, the burden was initially upon the examiner to
establish a reasonable basis for questioning the adequacy of
the disclosure. In re Strahilevitz, supra; In re Angstadt,
537 F.2d 498, 504, 190 USPQ 214, 219 (CCPA 1976); In re
Armbruster, 512 F.2d 676, 677-78, 185 USPQ 152, 153 (CCPA
1975).
The examiner contends that the instant claimed invention
is nonenabling because there is no block diagram and/or
circuitry disclosing how the transmitter/receiver pair is
configured in a manner to result in the emission of a signal
Appeal No. 95-2730
Application No. 08/169959
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for the first and second modes. The examiner also contends
that there is inadequate disclosure for emitting a signal on a
first operating mode characteristic of clear visibility,
switching to a second operating mode and emitting a signal in
the second operating mode. The examiner further contends that
there is an inadequate disclosure of a signal emission
occurring when two receivers observe an object at
approximately the same distance whose relative speed is one of
lower than, equal to, and higher than, the vehicle speed. The
examiner also questions how the object sensing device operates
with respect to the operating mode selector (4) and the rotary
type switch (5). Finally, the examiner asks, “How does the
object sensing device (1) know when an object is standing or
is driving more slowly in the driver’s direction of the motor
vehicle, and when an object comes toward the motor vehicle?”
[final rejection, page 4].
We have carefully considered the record before us,
including, inter alia, the arguments of the examiner and
appellant, the original disclosure and the declaration of
Walter Weishaupt and we conclude therefrom that while the
artisan would have needed to resort to some minimal
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experimentation in practicing the claimed invention, that
experimentation was clearly not undue as to make the
disclosure nonenabling within the meaning of 35 U.S.C. § 112,
first paragraph. Accordingly, we will not sustain the
rejection of claims 5 through 7.
The first operating mode concerns the situation where an
object is standing still or is driving more slowly in the
driver’s direction. Clearly, it was well known in the art
that distance measuring devices can determine whether an
object is standing still (the relative speed of the object is
equal to that of the vehicle speed) or moving slower in the
same direction as the vehicle (the relative speed of the
object is less than the vehicle speed).
The second operating mode concerns the situation where an
object may be standing still or driving more slowly in the
driver’s direction, as in the first mode, but also includes
the situation where an object is coming towards the vehicle.
Clearly, it was also known in the art how to determine when an
object is coming towards the vehicle (the relative speed of
the object is greater than the vehicle speed).
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Thus, the two modes of operations merely involve the
measuring of the relative speed of an object vis á vis a
vehicle and the determination of the position/direction of
that object, i.e., standing still, moving in the same
direction but slower than the vehicle or coming at the
vehicle. The skilled artisan was aware of how to make such
determinations from the prior art at the time of filing the
instant application.
The claimed subject matter merely involves a combination
of these two modes wherein the mode is selectable. It would
appear unreasonable to assume that the skilled artisan would
have needed to resort to anything more than routine
experimentation in order to practice the instant claimed
invention whereby one may switch between the two modes of
operation. The skilled artisan certainly could have employed
a switch or some logic circuitry,
including, for example, AND/or NOR gates, in a routine manner
to implement the selection between the first and second
operating modes.
Accordingly, in view of the rather simple functions to be
performed and the availability of prior art devices for
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Application No. 08/169959
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distance measuring between vehicles and objects, it is our
view that the examiner did not have a reasonable basis for
challenging the sufficiency of the instant disclosure under
the first paragraph of 35 U.S.C. § 112. Alternatively, to the
extent the examiner had such a reasonable basis, appellant
clearly has explained, through attorney argument and the
declaration of appellant, how the artisan would have easily
adapted the prior art devices, through a switching
arrangement, in view of appellant’s disclosure, to implement
the claimed subject matter.
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The examiner’s decision rejecting claims 5 through 7
under 35 U.S.C. § 112, first paragraph, as relying on a
nonenabling disclosure is reversed.
REVERSED
Errol A. Krass )
Administrative Patent Judge )
)
)
)
Michael R. Fleming ) BOARD OF
PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
Jameson Lee )
Administrative Patent Judge )
Appeal No. 95-2730
Application No. 08/169959
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Evenson, McKeown, Edwards & Lenahan
1200 G Street, N.W. Ste. 700
Washington, DC 20005