Ex Parte 6422595 et al

Patent Trial and Appeal Board

Dec 13, 2012

95001002 (P.T.A.B. Dec. 13, 2012)

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.
95/001,002 09/06/2007 6422595 ATI-232 REEX 1594
22846 7590 12/14/2012
BRIAN ROFFE, ESQ
8170 McCormick Boulevard, Suite 223
Skokie, IL 60076-2914
EXAMINER
GRAHAM, MATTHEW C
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
12/14/2012 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

ELESYS NORTH AMERICA, INC.
Requester, Cross-Appellant
v.

AUTOMOTIVE TECHNOLOGIES INTERNATIONAL, INC.
Patent Owner, Appellant
____________________

Appeal 2013-000150
Reexamination Control No. 95/001,002
Patent 6,422,595 B1
Technology Center 3900
____________________

Before DANIEL S. SONG, JOSIAH C. COCKS, and
MICHAEL J. FITZPATRICK, Administrative Patent Judges.

FITZPATRICK, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2013-000150
Reexamination Control No. 95/001,002
Patent 6,422,595 B1

2
STATEMENT OF THE CASE
Appellant, patent owner Automotive Technologies International, Inc.
(“Patent Owner”), appeals under 35 U.S.C. §§ 134(b) and 306 from the final
rejection of claims 1-6, 11, 12, and 28-34 set forth in the Right of Appeal
Notice (“RAN”). Claims 7-10 and 20-23 were not subject to reexamination.
Claims 13-19, 24-27, and 35-42 were canceled.
Requester and cross-appellant, Elesys North America, Inc. (“Elesys”),
appeals under 35 U.S.C. § 134(c) (2002) from the Examiner’s refusal to
adopt additional proposed rejections of claims 2, 6, and 29.
We have jurisdiction under 35 U.S.C. § 6(b)(2).
We AFFIRM-IN-PART.

THE INVENTION
This proceeding arose from a request by Elesys for an inter partes
reexamination of U.S. Patent 6,422,595 B1 (“‘595 patent”), entitled
“Occupant Position Sensor And Method And Arrangement For Controlling
A Vehicular Component Based On An Occupant’s Position,” and issued to
David S. Breed, Wendell Johnson, and Wilbur E. Duvall (July 23, 2002).
The ‘595 patent relates to vehicle occupant sensors and pattern
recognition analysis for controlling a vehicular component such as an airbag.
(Col. 6, ll. 36-40.) Claim 1 on appeal reads as follows.
1. A vehicle including an arrangement for identifying an
occupying item, the arrangement comprising:
means for obtaining information or data about the occupying
item, and
a pattern recognition system for receiving the information or
data about the occupying item and analyzing the information or data
about the occupying item with respect to at least one characteristic
Appeal 2013-000150
Reexamination Control No. 95/001,002
Patent 6,422,595 B1

3
selected from a group consisting of size, position, shape and motion to
determine what the occupying item is whereby a distinction can be
made as to whether the occupying item is human or inanimate object.

EVIDENCE
The Examiner relies upon the following prior art references:
Ishikawa
Ikeyama
Ando
Vollmer
Krogmann
Corrado
Breed
Kursawe1
US 4,625,329
US 4,706,072
US 5,008,946
US 5,161,820
US 5,247,584
US 5,482,314
GB 2,289,332 A
WO 97/04984
Nov. 25, 1986
Nov. 10, 1987
Apr. 16, 1991
Nov. 10, 1992
Sep. 21, 1993
Jan. 9, 1996
Nov. 15, 1995
Feb. 13, 1997

Breed et al., Vehicle Occupant Position Sensing, SAE Paper No.
940527 (Feb. 28 - Mar. 3, 1994) (“SAE Paper”).

REJECTIONS
The Examiner makes the following rejections:
1. Claims 1-4, 28-31, and 33 under 35 U.S.C. § 103(a) as unpatentable
over Ishikawa and Ikeyama.
2. Claims 5 and 32 under 35 U.S.C. § 103(a) as unpatentable over
Ishikawa, Ikeyama, and Krogmann.
3. Claims 1, 3, 11, 28, 30 and 34 under 35 U.S.C. § 102(b) as anticipated
by Vollmer.

1 Kursawe is written in German. Elesys provided, and the Examiner relied
upon, counterpart U.S. Patent 6,005,485 (iss. Dec. 21, 1999) as an English
translation of Kursawe (“Kursawe translation”). (Request 62; RAN 6.)
Appeal 2013-000150
Reexamination Control No. 95/001,002
Patent 6,422,595 B1

4
4. Claim 12 under 35 U.S.C. § 103(a) as unpatentable over Vollmer and
Ando.
5. Claims 4, 5, 31, and 32 under 35 U.S.C. § 103(a) as unpatentable over
Vollmer and Krogmann.
6. Claims 1, 5, 28, and 32 under 35 U.S.C. § 102(b) as anticipated by
Ikeyama.
7. Claims 1, 5, 28, and 32 under 35 U.S.C. § 102(b) as anticipated by
Kursawe.
8. Claims 1, 5, 6, 28, 32, and 33 under 35 U.S.C. § 102(b) as anticipated
by Corrado.
9. Claims 1 and 28 under 35 U.S.C. § 102(b) as anticipated by Breed.
10. Claims 1 and 28 under 35 U.S.C. § 102(b) as anticipated by the SAE
Paper.

PROPOSED REJECTIONS NOT ADOPTED
The Examiner refuses to make the following rejections:
1. Claim 6 under 35 U.S.C. § 103(a) as unpatentable over Ishikawa and
Ikeyama.2
2. Claims 2 and 29 under U.S.C. § 102(b) as anticipated by Vollmer.

2 It appears that the Examiner may have intended to reject claim 6 (along
with claims 1-4, 28-31, and 33) as being unpatentable over Ishikawa and
Ikeyama but inadvertently failed to list claim 6 in the RAN. (Compare RAN
2 with Request 23-28.)
Appeal 2013-000150
Reexamination Control No. 95/001,002
Patent 6,422,595 B1

5
ISSUES
1. Whether U.S. patent application Ser. No. 08/040,978 (the “‘978
application”) filed March 31, 1993 provides adequate descriptive
support for claims 1 and 28, as argued by the Patent Owner with
respect to Rejections 7-10.
2. Whether the Examiner erred in finding various claims anticipated or
unpatentable as set forth in Rejections 3-5 principally based on
Vollmer, and whether the Examiner erred in not finding claims 2 and
29 anticipated by Vollmer.
3. Whether the Examiner erred in finding various claims anticipated by
Ikeyama as set forth in Rejection 6.
4. Whether the Examiner erred in finding various claims unpatentable as
set forth in Rejections 1 and 2 principally based on the combination of
Ishikawa and Ikeyama, and whether the Examiner erred in not finding
claim 6 unpatentable based on these references.

FINDINGS OF FACT
The record supports the following findings of fact (“FF”) by a
preponderance of the evidence.
Priority
1. A. The application that issued as the ‘595 patent was filed on
August 15, 2000. (‘595 patent, cover page.)
Appeal 2013-000150
Reexamination Control No. 95/001,002
Patent 6,422,595 B1

6
1. B. The ‘595 patent includes a claim of priority to, among others, the
‘978 application, which was filed March 31, 1993.3
1. C. The Patent Owner asserts that claims 1 and 28 are supported by
the ‘978 application at page 8, lines 13-15; page 11, lines 12-15; page 13,
line 5 to page 14, line 1; page 14, line 24 to page 15, line 18; and page 24,
lines 3-4. (Appeal Br. 18 (citing Tables 1 and 2 of the Evidence Appendix).)
1. D. Page 8, lines 13-15 of the ‘978 application states:
Pattern recognition systems can also be used to differentiate an
occupant from a seat or a bag of groceries also based on relative
size, position or shape or even on passive infrared radiation, as
described below.

1. E. Page 24, lines 3-4 of the ‘978 application states: “A
sophisticated pattern recognition system could even distinguish between an
occupant and a bag of groceries, for example.”
1. F. Page 11, lines 12-15; page 13, line 5 to page 14, line 1; and page
14, line 24 to page 15, line 18 relate to determining the location or position
of the head, chest, or torso of a human and do not describe differentiation of
a human from an inanimate object.
Kursawe
2. A. The Examiner found that Kursawe discloses the subject matter
of claims 1, 5, 28, and 32. (RAN 6; see also Kursawe translation, Abstract;
col. 1, line 65 to col. 2, line 14.)

3 The Patent Owner did not submit the ‘978 application as evidence with its
Appeal Brief. Instead, it appears to have included erroneously another
application, 08/239,978, which happens to bear the same last three digits.
(See Appeal Br. Evidence Appendix.)
Appeal 2013-000150
Reexamination Control No. 95/001,002
Patent 6,422,595 B1

7
2. B. The Patent Owner does not contest the Examiner’s finding that
Kursawe discloses the subject matter of claims 1, 5, 28, and 32. (Appeal Br.
17-20.)
2. C. Kursawe was published on February 13, 1997. (Kursawe cover
page.)
Corrado
3. A. The Examiner found that Corrado discloses the subject matter
of claims 1, 5, 6, 28, 32, and 33. (RAN 6-7; see also Corrado Abstract, col.
6, lines 5-25, col. 25, lines 61-64, col. 26, lines 14-18.)
3. B. The Patent Owner does not contest the Examiner’s finding that
Corrado discloses the subject matter of claims 1, 5, 6, 28, 32, and 33.
(Appeal Br. 20-21.)
3. C. Corrado issued January 9, 1996. (Corrado cover page.)
Breed
4. A. The Examiner found that Breed discloses the subject matter of
claims 1 and 28. (RAN 7; see also Breed Abstract, p. 8, lines 3-4, p. 13,
lines 16-19, p. 19, lines 22-25, p. 20, lines 6-23.)
4. B. The Patent Owner does not contest the Examiner’s finding that
Breed discloses the subject matter of claims 1 and 28. (Appeal Br. 21-22.)
4. C. Breed was published on November 15, 1995. (Breed cover
page.)
SAE Paper
5. A. The Examiner found that the SAE Paper discloses the subject
matter of claims 1 and 28. (RAN 7; see also SAE Paper 2-4.)
Appeal 2013-000150
Reexamination Control No. 95/001,002
Patent 6,422,595 B1

8
5. B. The Patent Owner does not contest the Examiner’s finding that
the SAE Paper discloses the subject matter of claims 1 and 28. (Appeal Br.
22.)
5. C. The SAE Paper was published in 1994. (SAE Paper cover
page.)
Vollmer
6. A. Vollmer discloses:
An improved inflatable passenger side air bag safety device for
motor vehicles for detecting the presence or absence of a
passenger positioned on or in front of a particular passenger
vehicle seat. The safety device comprises a control unit for the
intelligent triggering of the propellant charge for the air bag
when a triggering event is detected, such as an impending
collision, and the presence of a passenger is also detected. The
control unit receives signals from a pair of switches, electrically
connected in parallel to one another, including a first seat
switch for detecting the presence or absence of a sitting
passenger and a second foot switch for detecting the presence or
absence of a standing, kneeling, or sitting passenger in the
region in front of the vehicle seat. (Abstract.)

6. B. Vollmer further states:
the control unit 13 may be provided with appropriate software
to evaluate force and pressure distribution patterns associated
with this type of foot contact switch and fore/pressure [sic]
measuring device to facilitate distinctions between the presence
of a passenger kneeling, standing or sitting on the floor carpet 9
and other articles such as luggage which may be stored on the
floor carpet 9 for which it is not necessary to inflate the air bag.
In this way it becomes possible to deactivate the air bag should
only luggage be detected by the floor contact switch 10. (Col.
6, lines 46-56.)

Appeal 2013-000150
Reexamination Control No. 95/001,002
Patent 6,422,595 B1

9
6. C. The Patent Owner concedes that Vollmer discloses the use of
force and/or pressure distribution patterns to facilitate distinctions between a
passenger and other articles such as luggage. (Appeal Br. 14.)
Ikeyama
7. A. Ikeyama teaches a system that monitors and detects the
conditions of a driver by obtaining a heartbeat signal from his or her hands
or by detecting a signal corresponding to whether or not a steering wheel is
firmly gripped by the hands. (Col. 1, lines 36-40.)
The ‘595 patent
8. A. The ‘595 Patent states:
Pattern recognition systems for the occupant as used here
means any system which will differentiate between the
occupant (his or her head and chest) and his extremities (hands
and arms) based on relative size, position or shape. Pattern
recognition systems can also be used to differentiate an
occupant from a seat or a bag of groceries also based on relative
size, position or shape or even on passive infrared radiation, as
described below. (Col. 6, lines 25-32.)

8. B. The ‘595 Patent states:
A sophisticated pattern recognition system could even
distinguish between an occupant and a bag of groceries, for
example, based on shape, size, position and/or motion.
(Col. 18, lines 38-41.)

PRINCIPLES OF LAW
35 U.S.C. §§ 112 and 120
An applicant or patent owner may be able to antedate potential prior
art by obtaining the benefit of an earlier filed patent application. 35 U.S.C.
§ 120. But, “[i]t is elementary patent law that a patent application is entitled
Appeal 2013-000150
Reexamination Control No. 95/001,002
Patent 6,422,595 B1

10
to the benefit of the filing date of an earlier filed application only if the
disclosure of the earlier application provides support for the claims of the
later application, as required by 35 U.S.C. § 112.” In re Chu, 66 F.3d 292,
297 (Fed. Cir. 1995); see also 35 U.S.C. § 120; Mendenhall v. Cedarapids
Inc., 5 F.3d 1557, 1566, 28 USPQ2d 1081, 1088-89 (Fed. Cir. 1993) (“A
patentee cannot obtain the benefit of the filing date of an earlier application
where the claims in issue could not have been made in the earlier
application.”).
35 U.S.C. § 112 states “[t]he specification shall contain a written
description of the invention[.]” The “test for sufficiency [under § 112] is
whether the disclosure of the application relied upon reasonably conveys to
those skilled in the art that the inventor had possession of the claimed
subject matter as of the filing date.” Ariad Pharm., Inc. v. Eli Lilly and Co.,
598 F.3d 1336, 1351 (Fed. Cir. 2010)(en banc). This “test requires an
objective inquiry into the four corners of the specification from the
perspective of a person of ordinary skill in the art. Based on that inquiry, the
specification must describe an invention understandable to that skilled
artisan and show that the inventor actually invented the invention claimed.”
Id. “[I]t is the specification itself that must demonstrate possession. And
while the description requirement does not demand any particular form of
disclosure, … or that the specification recite the claimed invention in haec
verba, a description that merely renders the invention obvious does not
satisfy the requirement.” Id. at 1352 (citations omitted).

Appeal 2013-000150
Reexamination Control No. 95/001,002
Patent 6,422,595 B1

11
Claim Construction
“During reexamination, as with original examination, the PTO must
give claims their broadest reasonable construction consistent with the
specification.” In re Suitco Surface, Inc., 603 F.3d 1255, 1259 (Fed. Cir.
2010). “Construing claims broadly during prosecution is not unfair to the
applicant (or, in this case, the patentee), because the applicant has the
opportunity to amend the claims to obtain more precise claim coverage.” In
re American Academy Of Science Tech Center, 367 F.3d 1359, 1364 (Fed.
Cir. 2004) (appeal from reexamination proceeding).4

ANALYSIS
Only those arguments actually made by the Patent Owner have been
considered in this decision. Arguments that the Patent Owner could have

4 We observe that although not pointed out or argued by the Patent Owner in
its brief, the ‘595 patent expired in 2010 for failure to pay a maintenance fee.
(See Notification of Expiration of Patent Under Reexamination filed Aug.
10, 2010). “[I]n reexaminations proceedings in which the PTO is
considering the patentability of claims of an expired patent which are not
subject to amendment, a policy of liberal claim construction may properly
and should be applied. Such a policy favors a construction of a patent claim
that will render it valid, i.e., a narrow construction, over a broad construction
that would render it invalid.” Ex parte Bowles, 23 USPQ2d 1015, 1017
(BPAI 1991) (quoting Ex parte Papst-Motoren, 1 USPQ2d 1655, 1656
(BPAI 1986)) (both nonprecedential). However, we decline to apply this
policy to the present case. Such policy is premised on an inability to amend
the claim, but the policy is not applicable in the present case wherein the
Patent Owner had ample opportunity to amend the claims of the ‘595 patent
prior to its expiration and the expiration of the ‘595 patent was volitional by
the Patent Owner’s intentional failure to pay the required maintenance fee.
Appeal 2013-000150
Reexamination Control No. 95/001,002
Patent 6,422,595 B1

12
made but did not are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(vii)
(2008); In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011).
Issue 1: Priority (Rejections 7-10)
The Patent Owner does not contest the Examiner’s findings that each
of Kursawe, Corrado, Breed, and the SAE Paper discloses the subject matter
of independent claims 1 and 28. (FFs 2B, 3B, 4B, 5B.) Rather, the Patent
Owner contests the anticipation rejections of these claims solely on the basis
that the asserted references allegedly do not qualify as prior art. More
specifically, the Patent Owner asserts that claims 1 and 28 are entitled to the
benefit of the March 31, 1993 filing date of the ‘978 application. (Appeal
Br. 18.)
Claim 1 requires, in relevant part and with emphasis added:
a pattern recognition system for receiving the information or
data about the occupying item and analyzing the information or
data about the occupying item with respect to at least one
characteristic selected from a group consisting of size, position,
shape and motion to determine what the occupying item is
whereby a distinction can be made as to whether the occupying
item is human or an inanimate object.

Similarly, claim 28 requires, in relevant part and with emphasis
added:
determining what the occupying item is by analyzing the
information or data about the occupying item with respect to at
least one characteristic selected from a group consisting of size,
position, shape and motion in the pattern recognition system
whereby the pattern recognition system differentiates a human
occupant from inanimate objects.

Appeal 2013-000150
Reexamination Control No. 95/001,002
Patent 6,422,595 B1

13
Although the ‘978 application contemplates pattern recognition
systems for differentiating a human from an inanimate object “based on
relative size, position or shape or even on passive infrared radiation,” (page
8, lines 13-15), it does not describe any such differentiation based on
motion.
Elsewhere, the ‘978 application discusses the determination of the
velocity of an occupant for purposes of deciding whether to deploy a
protective device such as an inflatable airbag during a sensed crash. (Page 9,
lines 7-23.) That discussion, however, is premised on the occupying item
being a human. The ‘978 application does not describe the use of pattern
recognition systems to differentiate a human from an inanimate object based
on velocity or motion.
In sum, we find that neither the excerpts cited by the Patent Owner
(see FFs 1C-1F) nor the remainder of the disclosure of the ‘978 application
provides support for the subject matter of claims 1 and 28. Hence, those
claims are not entitled to the benefit of the March 31, 1993 filing date of the
‘978 application.5 For this reason, we sustain the decisions to reject claims 1

5 The ‘595 patent is also not entitled to the benefit of U.S. patent application
Ser. No. 08/505,036, filed July 21, 1995 (now U.S. Patent 5,653,462) or
U.S. patent application Ser. No. 08/905,877, filed August 4, 1997 (now U.S.
Patent 6,186,537) with respect to the claims at issue. Neither of those
applications provides support for the subject matter of claims 1 and 28 for
the same reasons discussed above with respect to the ‘978 application. (See,
e.g., U.S. Patent 5,653,462 col. 4, line 67 to col. 5, line 4 (disclosing use of
pattern recognition systems to differentiate an occupant from an inanimate
object “based on relative size, position or shape or even on passive infrared
radiation” but not based on motion); U.S. Patent 6,186,537 col. 5, lines 7-11
(same).)
Appeal 2013-000150
Reexamination Control No. 95/001,002
Patent 6,422,595 B1

14
and 28 as anticipated by each of Kursawe, Corrado, Breed, and the SAE
Paper.
For the same reason, we sustain the decision to reject claims 5 and 6,
(which depend from claim 1) and claim 32 (which depends from claim 28)
as anticipated by Corrado and the decision to reject claims 5 and 32 as
anticipated by Kursawe.
Issue 2: Rejections based on Vollmer (Rejections 3-5)
Independent claims 1 and 11 each require, in relevant part: “a pattern
recognition system for . . . analyzing . . . to determine what the occupying
item is whereby a distinction can be made as to whether the occupying item
is human or an inanimate object.” Similarly, independent claims 28 and 34
each require, in relevant part: “determining what the occupying item is . . .
whereby the pattern recognition system differentiates a human occupant
from inanimate objects.”
The Patent Owner concedes that Vollmer discloses the use of force
and/or pressure distribution patterns to facilitate distinctions between a
passenger and other articles such as luggage. (Appeal Br. 14.) The Patent
Owner argues, however, that it is not enough for Vollmer to disclose mere
differentiation of an occupying item as either human or inanimate. (Appeal
Br. 14.) Rather, the Patent Owner proposes a construction of claim 1, for
example, requiring that:
the pattern recognition system provides an identification or an
identity of the occupying item, i.e., whether it is a child seat, a
human occupant or a bag of groceries. Once the identity of the
occupying item is known, a distinction can be made as to
whether the object is animate, e.g., a human, or inanimate, e.g.,
Appeal 2013-000150
Reexamination Control No. 95/001,002
Patent 6,422,595 B1

15
a non-human object such as a seat or a bag of groceries.
(Appeal Br. 14.)

Thus, the Patent Owner argues that the claims require first a determination
of the identity of the occupying item and subsequently a differentiation of
the identified item as either human or inanimate.
In support of its proposed construction, the Patent Owner relies
foremost on column 18, lines 38-41, which state, with emphasis being
added: “A sophisticated pattern recognition system could even distinguish
between an occupant and a bag of groceries, for example, based on shape,
size, position and/or motion.” (See Appeal Br. 14.) This excerpt from the
‘595 patent does not disclose identification of what an occupying item is
beyond differentiating the item as either a human occupant or an inanimate
object.
The Patent Owner also relies on column 6, lines 25-32, which state, in
relevant part and with emphasis added: “Pattern recognition systems can
also be used to differentiate an occupant from a seat or a bag of groceries
also based on relative size, position or shape or even on passive infrared
radiation, as described below.” (See Appeal Br. 14.) This excerpt from the
‘595 patent also does not disclose identification of what an occupying item
is beyond differentiating the item as either a human or inanimate object.
Indeed, despite referring to two examples of inanimate objects (i.e., a seat
and a bag of groceries), the ‘595 patent does not disclose differentiating
between them. Moreover, it does not disclose identification of the seat as a
seat or the bag of groceries as a bag of groceries.
Appeal 2013-000150
Reexamination Control No. 95/001,002
Patent 6,422,595 B1

16
Accordingly, we reject the Patent Owner’s proposed claim
construction as it is premised on an alleged disclosure which neither appears
in nor is supported by the specification. See In re Suitco, 603 F.3d at 1259
(identifying claim construction standard as “broadest reasonable
construction consistent with the specification”) (emphasis added).
The Examiner has construed the claims to require determination of the
occupying item only to the extent sufficient to facilitate differentiation
between a human and an inanimate object. (See, e.g., RAN 4.) We agree
with the Examiner’s construction.
Independent claim 1, for example, recites “to determine what the
occupying item is whereby a distinction can be made as to whether the
occupying item is human or an inanimate object[.]” (Emphasis added.) We
note the use of the word “whereby” and interpret it as introducing a phrase
that directly relates back and provides meaning to the required
determination. In other words, “whereby a distinction can be made as to
whether the occupying item is human or an inanimate object” defines a
minimum extent of the determination that is required regarding “what the
occupying item is[.]” As discussed above, the specification does not
disclose determining what the occupying item is beyond differentiating the
item as either a human or inanimate object. Hence, our construction is
consistent with the specification.
In sum, we construe “to determine what the occupying item is
whereby a distinction can be made as to whether the occupying item is
human or an inanimate object,” as recited in independent claims 1 and 11, as
requiring determination of what the occupying item is only to the extent
Appeal 2013-000150
Reexamination Control No. 95/001,002
Patent 6,422,595 B1

17
sufficient whereby a distinction between a human and an inanimate object
can be made. Similarly, we construe the term “determining what the
occupying item is . . . whereby the pattern recognition system differentiates a
human occupant from inanimate objects,” as recited in independent claims
28 and 34, as requiring determining what the occupying item is only to the
extent sufficient whereby the pattern recognition system can differentiate a
human from an inanimate object.
Because we reject the Patent Owner’s claim construction and agree
with the Examiner’s claim construction, we sustain the decision to reject
claims 1, 3, 11, 28, 30 and 34 as anticipated by Vollmer.
We also sustain the decision to reject claim 12 as unpatentable over
Vollmer and Ando, as the Patent Owner’s sole argument against that
rejection incorporates and fatally relies on its erroneous construction of
claim 11.
We also sustain the decision to reject dependent claims 4, 5, 31, and
32 as unpatentable over Vollmer and Krogmann, as the Patent Owner’s sole
argument against that rejection incorporates and fatally relies on its
erroneous construction of independent claims 1 and 28.
Elesys argues in its cross-appeal that the Examiner should have also
rejected claims 2 and 29 as anticipated by Vollmer. Each of those dependent
claims requires that “the at least one characteristic is size.” Elesys argues
that “[i]n Vollmer, the force and pressure distribution patterns necessarily
teach information or data about an occupying item with respect to size.”
(Cross Appeal Br. 7.) We disagree. Information about force or pressure,
without more, is not information about size because objects can have
Appeal 2013-000150
Reexamination Control No. 95/001,002
Patent 6,422,595 B1

18
differing densities. Accordingly, we sustain the Examiner’s refusal to reject
claims 2 and 29 as anticipated by Vollmer.
Issue 3: Rejection based on Ikeyama (Rejection 6)
Ikeyama teaches a system that monitors and detects the conditions of
a driver by obtaining a heartbeat signal from his or her hands or by detecting
a signal corresponding to whether or not a steering wheel is firmly gripped
by the hands. (Ikeyama col. 1, lines 36-40.) Although Ikeyama may teach
apparatus (e.g., steering wheel-based sensors) capable of detecting the
presence of a human, it does not disclose apparatus capable of differentiating
between a human and an inanimate object. For example, if no heartbeat is
detected by the Ikeyama system, that does not mean an inanimate object is
present; it merely means that there is no human being holding the steering
wheel.
The Examiner’s rejection does not identify any disclosure by Ikeyama
of an apparatus that is arranged in a manner such that it is capable of
detecting the presence of an inanimate object. See Lindemann
Maschinenfabrik GMBH v. American Hoist and Derrick Co., 730 F.2d 1452,
1458 (Fed. Cir. 1984) (“Anticipation requires the presence in a single prior
art reference disclosure of each and every element of the claimed invention,
arranged as in the claim.”) (emphasis added). For this reason, we cannot
sustain the decision to reject independent claims 1, 5, 28, and 32 as
anticipated by Ikeyama.
Issue 4: Rejections based on combination of Ishikawa and Ikeyama
(Rejections 1 and 2)
Appeal 2013-000150
Reexamination Control No. 95/001,002
Patent 6,422,595 B1

19
The Examiner concedes that Ishikawa does not teach a pattern
recognition system that differentiates between a human and an inanimate
object, and relies instead on Ikeyama as purportedly providing such a
teaching. (RAN 2.) More specifically, the Examiner found that “[a]s a
heartbeat is a pattern, Ikeyama therefore uses pattern recognition to
differentiate between a human and an inanimate object.” (RAN 2.)
We disagree with the Examiner’s finding in this regard. Ikeyama does
not teach differentiation between a human and an inanimate object, and, as
discussed above, Ikeyama does not disclose apparatus capable thereof. In
fact, Ikeyama lacks any discussion regarding inanimate objects as occupying
items.
For these reasons, we cannot sustain the decision to reject independent
claims 1 and 28 as unpatentable over Ishikawa and Ikeyama. For the same
reason, we cannot sustain the decision to reject claims 2-4 (depending from
claim 1) or claims 29-31 and 33 (depending from claim 28) as unpatentable
over Ishikawa and Ikeyama.
Elesys observes that the Examiner likely inadvertently failed to
include claim 6 in the rejection of claims 1-4, 28-31, and 33 as unpatentable
over Ishikawa and Ikeyama. (Cross Appeal Br. 8.) Since we are reversing
that rejection, Elesys’s observation is moot. We sustain the Examiner’s
refusal (whether inadvertent or intentional) to reject claim 6 as unpatentable
over Ishikawa and Ikeyama.

Appeal 2013-000150
Reexamination Control No. 95/001,002
Patent 6,422,595 B1

20
DECISION
The Examiner’s decision to reject claims 1-4, 28-31, and 33 as
unpatentable over Ishikawa and Ikeyama is REVERSED.
The Examiner’s decision to reject claims 5 and 32 as unpatentable
over Ishikawa, Ikeyama, and Krogmann is REVERSED.
The Examiner’s decision to reject claims 1, 3, 11, 28, 30 and 34 as
anticipated by Vollmer is AFFIRMED.
The Examiner’s decision to reject claim 12 under 35 U.S.C. § 103(a)
as being unpatentable over Vollmer and Ando is AFFIRMED.
The Examiner’s decision to reject claims 4, 5, 31, and 32 as
unpatentable over Vollmer and Krogmann is AFFIRMED.
The Examiner’s decision to reject claims 1, 5, 28, and 32 as
anticipated by Ikeyama is REVERSED.
The Examiner’s decision to reject claims 1, 5, 28, and 32 under 35
U.S.C. § 102(b) as being anticipated by Kursawe is AFFIRMED.
The Examiner’s decision to reject claims 1, 5, 6, 28, 32, and 33 as
anticipated by Corrado is AFFIRMED.
The Examiner’s decision to reject claims 1 and 28 as anticipated by
Breed is AFFIRMED.
The Examiner’s decision to reject claims 1 and 28 as anticipated by
the SAE Paper is AFFIRMED.
The Examiner’s refusal to reject claim 6 as unpatentable over
Ishikawa and Ikeyama is AFFIRMED.
The Examiner’s refusal to reject claims 2 and 29 as anticipated by
Vollmer is AFFIRMED.
Appeal 2013-000150
Reexamination Control No. 95/001,002
Patent 6,422,595 B1

21

Requests for extension of time in this inter partes reexamination
proceeding are governed by 37 C.F.R. §§ 1.956 and 41.77(g).

AFFIRMED-IN-PART

PATENT OWNER:

BRIAN ROFFE, ESQ.
8170 MCCORMICK BLVD., SUITE 223
SKOKIE, IL 60076-2914

THIRD PARTY REQUESTER:

RICHARD K. DEMILLE
BRINKS, HOFER, GILSON & LIONE
PO BOX 10395
CHICAGO, IL 60610