Seiler, Rebecca Lynne.

Patent Trials and Appeals Board

Jan 9, 2020

13596501 - (D) (P.T.A.B. Jan. 9, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/596,501 08/28/2012 Rebecca Lynne Seiler 83205556 2234
28395 7590 01/09/2020
BROOKS KUSHMAN P.C./FGTL
1000 TOWN CENTER
22ND FLOOR
SOUTHFIELD, MI 48075-1238
EXAMINER
NGUYEN, NGA X
ART UNIT PAPER NUMBER
3662
NOTIFICATION DATE DELIVERY MODE
01/09/2020 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 REBECCA LYNNE SEILER
____________________

Appeal 2019-004207
Application 13/596,501
Technology Center 3600
____________________

Before PHILLIP J. KAUFFMAN, TARA L. HUTCHINGS, and
ALYSSA A. FINAMORE, Administrative Patent Judges.

HUTCHINGS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 21–30. We have jurisdiction under
§ 6(b). We REVERSE and enter a NEW GROUND OF REJECTION
pursuant to our authority under 37 C.F.R. § 41.50(b).

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Our Decision references Appellant’s Appeal Brief (“Appeal
Br.,” filed Dec. 21, 2018), and the Examiner’s Answer (“Ans.,” mailed Feb.
25, 2019) and Final Office Action (“Final Act.,” mailed July 19, 2018).
Appellant identifies Ford Global Technologies, LLC, as the real party in
interest. Appeal Br. 1.
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CLAIMED INVENTION
Appellant’s claimed invention “relate[s] to vehicle communications
with external objects, and vehicle braking based on the communications with
the external objects.” Spec. ¶ 1.
Claims 21, 25, and 27 are the independent claims on appeal.
Claim 21, reproduced below, is illustrative of the claimed subject matter.
21. A host vehicle comprising:
a brake system; and
a vehicle controller configured to:
receive input indicative of travel data transmitted
from both leading and trailing external objects; and
transmit data to perform only one of a precharge to
the brake system and an actuation of the brake system based on
a threat level determined from a current distance between the
objects.

REJECTIONS2
Claims 21 and 25–27 are rejected under 35 U.S.C. § 102(b) as
anticipated by Yamashiro (US 2013/0041567 A1, pub. Feb. 14, 2013).
Claims 22–24 and 27–30 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Yamashiro and Chen (US 7,018,004 B2, iss. Mar. 28,
2006).

2 The Examiner has withdrawn the rejection of claims 21–30 under 35
U.S.C. § 112, first paragraph. Ans. 3.
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ANALYSIS
Anticipation
We are persuaded by Appellant’s argument that the Examiner erred in
rejecting independent claims 21, 25, and 27 under 35 U.S.C. § 102(b) as
anticipated by Yamashiro because Yamashiro does not disclose “a vehicle
controller configured to . . . transmit data to perform only one of a precharge
to the brake system and an actuation of the brake system based on a threat
level determined from a current distance between the objects,” as recited in
claim 21, and similarly recited in claims 25 and 27. Appeal Br. 3.
Yamashiro describes a travel support system for organizing convoy
travel of vehicles by controlling distances between the vehicles.
Yamashiro ¶¶ 3, 19, 22, 26. Travel support system 100 includes multiple
travel support apparatuses 1, each travel support apparatus 1 mounted on a
separate vehicle. Id. ¶ 37. Each travel support apparatus 1 includes
communication unit 11 and control unit 12, and is communicably coupled to
components in the vehicle, such as position direction detector 2 and brake
electronic control unit (“brake ECU”) 5. Id. ¶ 39, Fig. 2.
Control unit 12 of the subject vehicle receives a current position,
travel direction, vehicle state information, and speed control capacity from
other vehicles. Id. ¶ 64. Control unit 12 identifies the lead vehicle and/or
the following vehicle based on the relative positions to the subject vehicle
and map data. Id. In one embodiment, control unit 12 detects the inter-
vehicle distance to the lead vehicle based on the current position of the lead
vehicle sent from the lead vehicle and the current position of the subject
vehicle. Id. ¶ 66. Control unit 12 restricts the maximum deceleration of the
subject vehicle, and sets a target inter-vehicle distance to the lead vehicle
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based on information from the lead vehicle and the following vehicle. Id.
¶ 67.
In rejecting claims 21, 25, and 27, the Examiner finds that Yamashiro
teaches a vehicle controller configured to receive input indicative of travel
data transmitted from both leading and trailing external objects. Final
Act. 5–6. The Examiner further finds that the vehicle controller is
configured to transmit data to actuate the brake system based on a threat
level determined from a current distance between the objects. Id. The
Examiner acknowledges, with respect to the alternative rejection of claim 27
under 35 U.S.C. § 103(a), that Yamashiro does not teach pre-charging the
brake system when a threat level is credible. See id. at 6 (discussing the
rejection of claims 22 and 27 under 35 U.S.C. § 103(a)). However, the
Examiner ostensibly determines that the independent claims 21, 25, and 27
do not require the claimed vehicle controller to be capable of performing a
precharge to the brake system based on a threat level. See id. at 2
(emphasizing that independent claim 21 performs only one of a precharge
and actuation); see also id. at 3 (suggesting that Yamashiro’s control unit 12,
as set forth at paragraph 51 of Yamashiro, performs an actuation of a brake
system and, thus, teaches meets the claimed “vehicle controller” that is
configured to transmit data to perform “only one of” a precharge and an
actuation, as recited in independent claims 21 and 25). We disagree with the
Examiner’s interpretation of the claim language.
Claims 21, 25, and 27 are apparatus claims including a vehicle
controller “configured to” (claims 21 and 27) or “programed to” (claim 25)
perform functional limitations (i.e., “receive input” and “transmit data”).
Although the claims require that the vehicle controller be configured or
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programmed to transmit data to perform “only one of” the functional
limitations of precharging and an actuation, the claims nonetheless require
the vehicle controller to be configured or programmed to perform both
functions.
The broadest reasonable interpretation of a system claim having
structure that performs a function, which only needs to occur if a
condition precedent is met, still requires structure for performing
the function should the condition occur. This interpretation of
the system claim differs from the method claim because the
structure (i.e., a processor programmed to perform an algorithm
for carrying out the recited function should the recited condition
be met) is present in the system regardless of whether the
condition is met and the function is actually performed.
Ex parte Schulhauser, Appeal 2013-007847, 2016 WL 6277792, at *7
(PTAB Apr. 28, 2016) (precedential).
As described above, the Examiner acknowledges that Yamashiro’s
vehicle controller is not configured to or programmed to perform a
precharge. Therefore, we do not sustain the rejection of claims 21 and 25–
27 under 35 U.S.C. § 102(b) as anticipated by Yamashiro.

Obviousness
In rejecting claims 22–24 and 27–40 under 35 U.S.C. § 103(a) as
being unpatentable over Yamashiro and Chen, the Examiner acknowledges
that Yamashiro fails to teach that the brake system is precharged when a
threat level is credible. However, the Examiner relies on Chen for this
limitation. Final Act. 6–7 (citing Chen 4:17–27). The Examiner reasons
that it would have been obvious to modify Yamashiro by including Chen’s
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precharging to a brake system to “provid[e] safe[ty] in driving the vehicle.”
Id. at 7.
Appellant argues that the Examiner’s rejection has shown the
independent existence of providing automatic actuation of brakes based on a
threat level (i.e., Yamashiro) and precharging of brakes based on a threat
level (i.e., Chen), but has not adequately explained why one of ordinary skill
in the art would have combined Yamashiro and Chen to result in the claimed
invention. Appeal Br. 3–5. We agree with Appellant that the Examiner’s
rationale for the combination is conclusory.
Therefore, we reverse the rejection of claims 22–24 and 27–30 under
35 U.S.C. § 103(a) as being unpatentable over Yamashiro and Chen.

NEW GROUND OF REJECTION
Pursuant to our authority under 37 C.F.R. § 41.50(b), we enter a new
ground of rejection against claims 21–25 and 27–30 under 35 U.S.C.
§ 103(a) as being unpatentable over Yamashiro and Chen.
Because claims 21 and 25 recite similarsubject matter, we address
them together, selecting claim 21 as representative. Claim 21 recites a host
vehicle comprising a brake system and a vehicle controller. Yamashiro, as
detailed earlier, describes a host vehicle (i.e., Yamashiro’s subject vehicle)
comprising a brake system and a vehicle controller (i.e., travel support
apparatus 1). See, e.g., Yamashiro ¶¶ 37, 39, 48, 62. Yamashiro does not
expressly identify its brake system. However, Yamashiro teaches that a
braking system is necessarily present in the subject vehicle. For example,
Yamashiro’s travel support apparatus communicates information regarding a
change in the subject vehicle’s braking to other vehicles. Id. ¶ 62. Also,
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Yamashiro’s brake ECU 5 “performs various processes in regards to the
braking of the [subject] vehicle,” including detecting signals from the
subject vehicle’s brake switch and from its brake fluid sensor. Id. ¶ 48.
Claim 21 further recites that the claimed vehicle controller is
configured to receive input indicative of travel data transmitted from both
leading and trailing external objects, and to transmit data to perform only
one of a precharge to the brake system and an actuation of the brake system
based on a threat level determined from a current distance between the
objects. As set forth above, travel support apparatus 1 is configured to
receive input indicative of travel data transmitted from both leading and
trailing external objects. Yamashiro ¶¶ 49, 67.
Yamashiro suggests transmitting data to perform an actuation of the
brake system. For example, Yamashiro describes that the control unit of the
vehicle controller “controls the vehicle distance between the subject vehicle
and the lead vehicle to at least the target inter-vehicle distance.” Id. ¶ 14;
see also id. ¶¶ 66–67 (describing calculating and setting inter-vehicle
distance). The target inter-vehicle distance to the lead vehicle is a reserved
distance or clearance that may absorb a change of the inter-vehicle distance
as a result of a difference in the speed control capacity of the subject vehicle
and the lead vehicle. Id. ¶ 14. The control unit provides a speed control
capacity of the subject vehicle that controls speed of the subject vehicle. Id.
¶ 51. Paragraph 51 describes calculating a deceleration delay time to
automatic deceleration after detecting a reduction of an inter-vehicle
distance.
Although Yamashiro would have suggested transmitting data to
perform an actuation of the brake system, it fails to teach “transmit[ting]
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data to perform only one of a precharge to the brake system and an actuation
of the brake system based on a threat level determined from a current
distance between the objects,” as recited in claim 21. Chen, however,
describes that pedal-operated brakes suffer deceleration delay between the
time that a driver’s foot presses the brake pedal and the actual energization
of the brake system. Chen 1:19–21. Chen teaches to reduce deceleration
delay by precharging vehicle braking system 10. See, e.g., Chen 1:44–51.
Specifically, Chen describes moving brake pads 35 from a first state, in
which the pads are positioned at a first distance from wheel rotors 34, to a
second state, in which the pads are positioned at a second distance closer to
the rotors than the first distance, before the brake pedal is pressed.
Chen 1:60–64; 2:58–61, 6:11–30.
Chen teaches a method including steps of:
sensing an object in a near vicinity of the vehicle, generating a
proximity signal, predicting a threat of collision between the
object and the vehicle in response to the proximity signal,
determining whether the threat of collision is high, and pre-
charging the brakes in response to a high threat of collision
prediction.
Chen 2:6–13.
Accordingly, Yamashiro teaches that, upon recognizing an imminent
threat, the travel support apparatus would transmit data to perform an
actuation of the brake system in order to maintain the target inter-vehicle
distance. See Yamashiro ¶ 14. Chen teaches that, upon recognizing a
credible threat, performing a precharge to the brake system in order to
shorten the deceleration delay if and when the brakes are applied. Chen
1:19–21, 6:26–30. It would have been obvious to one of ordinary skill in the
art at the time of the invention to have modified Yamashiro’s travel support
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apparatus 1, which transmits data to perform an actuation of the brake
system upon an imminent threat, to include Chen’s teaching of pre-charging
the brake system upon a credible threat as a combination of known elements
according to known methods to yield the predictable result of actuating or
pre-charging the brake system based on the threat level. See KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 416 (2007) (“[A] combination of familiar
elements according to known methods is likely to be obvious when it does
no more than yield predictable results.”).
Appellant argues that combining Yamashiro and Chen would result in
actuating the brakes and precharging the brakes at the same time. Appeal
Br. 4. Yet, as Chen makes clear (and Appellant concedes at page 4 of the
Appeal Brief), brakes cannot be precharged and actuated simultaneously.
Specifically, Chen describes that in the second position brake pads 35
engage rotor 34, but do not significantly inhibit wheel rotation. Chen 6:14–
19; see also id. at 5:23–25. As a result, precharging cannot result in the
braking system significantly slowing or decelerating the system (i.e.,
actuating the brakes). Id. at 6:19–21.
Moreover, Chen describes a sequence in which the brake system first
is precharged and then is actuated manually. For example, Chen teaches that
the brake system precharges the brakes upon receiving a sufficient threat of
collision. Then, a driver actuates the brakes by applying pressure to a brake
pedal. Id. at 2:58–61 (describing precharging as “reducing the distance
between brake friction material and surfaces just prior to driver brake
actuation”); see also id. 3:58–4:14 (teaching the rate that the vehicle
approaches another vehicle to trigger precharging indicates that the driver
should be about to apply the brakes); 5:9–14 (describing that precharging
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occurs before depression of the brake pedal 28). The delay in moving the
brakes to engage the wheel is reduced due to the shortened distance that the
brake pad needs to travel. Id. at 6:26–30; see also id. at 5:25–31.
Finally, Appellant argues that the teachings of Yamashiro and Chen
could not be combined in the fashion claimed because doing so would have
changed the principles of operation of both references. Appeal Br. 5. This
argument is merely a variation on Appellant’s argument that neither
Yamashiro nor Chen teaches both precharging and actuation.
As set forth above, Yamashiro suggests transmitting data to actuate a
brake system based on a threat level determined from a current distance
between the objects. Further, Chen teaches precharging a brake prior to
actuating a brake to reduce braking delay by decreasing the distance that the
brake friction material travels. In our view, it would have been obvious to
one of skill in the art to improve Yamashiro’s travel support apparatus 1 to
further reduce braking delays by transmitting data to perform only one of a
precharge to the brake system and an actuation of the brake system based on
a threat level determined from a current distance between the objects.
The subject matter of claims 22 and 23 were addressed in the course
of our discussion regarding the new ground of rejection entered against
claims 21 and 25.
Claim 24 recites the “host vehicle of claim 23, wherein the threat level
is based on a brake threat number.” Chen describes calculating a “threat of
collision” based on the distance between the subject vehicle and a lead
vehicle; and performing a precharge to the brake system when the threat of
collision is high. Chen 3:47–48; 6:22–25. Based on this teaching, it would
have been obvious to calculate a brake threat number based on a comparison
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between the current inter-vehicle distance and Yamashiro’s target inter-
vehicle distance; and then to base the threat level on the brake threat
number, as a practical means to implement the teachings of Chen
automatically in the context of Yamashiro’s travel support apparatus.
Claims 27–30 stand rejected for the same reasons as claims 21–24.

DECISION SUMMARY
In summary:
Claims
Rejected
35
U.S.C.
§
Reference(s)/Basis Affirmed Reversed New
Ground
21, 25–
27
102(b) Yamashiro 21, 25–27
22–24,
27–30
103(a) Yamashiro, Chen 22–24,
27–30

21–25,
27–30
103(a) Yamashiro, Chen3 21–25,
27–30
Overall
Outcome
21–30 21–25,
27–30

TIME PERIOD FOR RESPONSE
This decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b). Section 41.50(b) provides “[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review.”

3 We reverse the rejection of claim 26 under 35 U.S.C. § 102(b), and it is not
subject to the new ground of rejection.
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Section 41.50(b) also provides that the Appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
(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 prosecution
will be remanded to the examiner. . . .
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record. . . .

Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure § 1214.01.
REVERSED; 37 C.F.R. § 41.50(b)