Ex Parte Books

Patent Trial and Appeal Board

Sep 21, 2017

13307812 (P.T.A.B. Sep. 21, 2017)

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.
13/307,812 11/30/2011 Martin T. Books CECO-670 6325
54620 7590 09/25/2017
CUMMINS INC.
TAFT, STETTINIUS & HOLLISTER LLP
ONE INDIANA SQUARE
SUITE 3500
INDIANAPOLIS, IN 46204-2023
EXAMINER
SWENSON, BRIAN L
ART UNIT PAPER NUMBER
3618
NOTIFICATION DATE DELIVERY MODE
09/25/2017 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):
taft-ip-docket @ taftlaw. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARTIN T. BOOKS
Appeal 2016-005292
Application 13/307,8121
Technology Center 3600
Before LARRY J. HUME, NORMAN H. BEAMER,
and MATTHEW J. McNEILL, Administrative Patent Judges.
BEAMER, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1—12, 15, and 17-40. Claims 13 and 16 are
canceled. We have jurisdiction over the pending rejected claims under 35
U.S.C. § 6(b).
We affirm.
1 Appellant identifies Cummins Inc. as the real party in interest. (App.
Br. 2.)
Appeal 2016-005292
Application 13/307,812
THE INVENTION
Appellant’s disclosed and claimed invention is directed to a vehicle
braking system with regenerative and compression braking capacity.
(Abstract.) Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A method, comprising:
interpreting an operator braking request value;
determining a regenerative braking capacity;
in response to the regenerative braking capacity being
lower than the operator braking request value, determining a
supplemental braking request value and a mechanical braking
capacity, wherein an engine compression braking amount of the
mechanical braking capacity is limited to a fraction of a total
engine compression braking limit selected by an operator, and
the mechanical braking capacity is determined from a plurality
of mechanical braking devices in addition to a compression
braking device providing the engine compression braking
amount, wherein the plurality of mechanical braking devices do
not include friction brakes and regenerative braking
components;
in response to the mechanical braking capacity being
lower than the supplemental braking request value, determining
a friction braking value;
providing a regenerative braking command in response to
the regenerative braking capacity and the operator braking
request value;
providing a mechanical braking command in response to
the supplemental braking request value and the mechanical
braking capacity; and
providing a friction braking command in response to the
friction braking value.
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Appeal 2016-005292
Application 13/307,812
REJECTIONS
The Examiner rejected claims 1—10, 12, 14, 15, 19, 20, 23, 26—29, and
31—37 under 35 U.S.C. § 103(a) as being unpatentable over Manabe (US
6,120,115, issued Sept. 19, 2000), Warner (US 6,536,408 Bl, issued
Mar. 25, 2003), and Faletti et al. (US 5,813,231, issued Sept. 29, 1998)
(“Faletti”). (Final Act. 2-16.)
The Examiner rejected claims 11,21, and 22 under 35 U.S.C. § 103(a)
as being unpatentable over Manabe, Warner, Faletti, and Soliman et al. (US
7,841,433 B2, issued Nov. 30, 2010) (“Soliman”). (Final Act. 17.)
The Examiner rejected claims 17, 24, 25, and 40 under 35 U.S.C.
§ 103(a) as being unpatentable over Manabe, Warner, Faletti, and Tanaka et
al. (US 5,088,041, issued Feb. 11, 1992) (“Tanaka”). (Final Act. 17—18.)
The Examiner rejected claims 18, 30, and 39 under 35 U.S.C. § 103(a)
as being unpatentable over Manabe, Warner, Faletti, and Nishina et al. (US
7,275,795 B2, issued Oct. 2, 2007) (“Nishina”). (Final Act. 18.)
The Examiner rejected claim 38 under 35 U.S.C. § 103(a) as being
unpatentable over Manabe, Warner, Faletti, and Rettig et al. (US 5,733,219,
issued Mar. 31, 1998) (“Rettig”). (Final Act. 19.)
ISSUE ON APPEAF
Appellant’s arguments present the following issue2:
2 Rather than reiterate the arguments of Appellant and the findings of the
Examiner, we refer to the Appeal Brief (filed Oct. 12, 2015); the Reply Brief
(filed Apr. 20, 2016); the Final Office Action (mailed Mar. 12, 2015); and
the Examiner’s Answer (mailed Feb. 23, 2016) for the respective details.
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Appeal 2016-005292
Application 13/307,812
Whether the Examiner erred in finding the combination of Manabe,
Warner, and Faletti teaches or suggests all of the limitations of independent
claims 1, 10, 19, 32, and 36. (App. Br. 10-23.)
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments the Examiner erred. We disagree with Appellant’s arguments,
and we adopt as our own (1) the pertinent findings and reasons set forth by
the Examiner in the Action from which this appeal is taken (Final Act. 2—19)
and (2) the corresponding reasons set forth by the Examiner in the
Examiner’s Answer in response to Appellant’s Appeal Brief (Ans. 19—23).
We concur with the applicable conclusions reached by the Examiner and
emphasize the following.
In finding Manabe, Warner, and Faletti teach or suggest the
limitations of independent claims 1, 10, 19, 32, and 36, the Examiner relies
on the disclosure in Manabe of a braking energy control apparatus involving
regenerative braking, engine braking, and friction braking, controlled so that,
“[i]f the amount of regenerative braking energy is not sufficient, engine
braking energy is fully utilized and, if necessary, friction braking energy
based on liquid pressure is used as a supplement.” (Final Act. 2—3; Manabe
Fig. 6, col. 14,11. 47—63.) The Examiner also relies on the disclosure in
Warner of an engine brake control system including manual switching
between “three power levels of engine braking: low, medium and high.”
(Final Act. 3; Warner col. 5,11. 6—7.) In addition, the Examiner relies on the
disclosure in Faletti of a braking control having:
a variable geometry turbocharger which is controllable to vary
intake manifold pressure and wherein the engine is operable in
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Application 13/307,812
a braking mode includes a turbocharger geometry actuator for
varying turbocharger geometry and an exhaust valve actuator
for opening an exhaust valve of the engine.
(Final Act. 4; Faletti col. 3,11. 6—11.)
Appellant argues the combination of Manabe, Warner, and Faletti
does not teach or suggest:
the mechanical braking capacity is determined from a plurality
of mechanical braking devices in addition to a compression
braking device providing the engine compression braking
amount, wherein the plurality of mechanical braking devices do
not include friction brakes and regenerative braking
components.
(App. Br. 12.) Appellant argues, although Faletti discloses additional
devices to control engine compression braking, it does not disclose “that a
mechanical braking capacity of these additional devices is determined in
addition to the compression braking device providing the engine
compression braking amount,” or “wherein the mechanical braking
capacity is determined from a plurality of mechanical braking devices
wherein the plurality of mechanical braking devices do not include
friction brakes and regenerative braking components.” (App. Br. 12—13)
(emphasis added.)
This argument is unpersuasive because the Examiner is relying on the
combination of Manabe, Warner, and Faletti as teaching or suggesting this
claim requirement. In re Mouttet, 686 F.3d 1322, 1333 (Fed. Cir. 2012)
(citing In re Keller, 642 F.2d 413, 425 (CCPA 1981)) (“[T]he test for
obviousness is what the combined teachings of the references would have
suggested to those having ordinary skill in the art.”). In particular, Manabe
discloses determining mechanical braking capacity that does not include
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Application 13/307,812
friction and regenerative braking, and Manabe discloses use of a plurality of
types of mechanical braking in addition to compression braking. (Final
Act. 2—5; Ans. 19—20.)
Appellant also argues Manabe teaches away from “an engine
compression braking amount of the mechanical braking capacity that is
limited to a fraction of a total engine compression braking limit selected by
an operator,” because in Manabe “a maximum-possible amount of engine
braking energy is used.” (App. Br. 14; Manabe col. 14,11. 54—55)
(emphasis added.) However, as Appellant’s Specification explains, truck
braking systems commonly include operator controls that lower compression
braking capacity. (Spec. 17,11. 5—8, 17,1. 21—18,1. 1.) Manabe does not
address this fact, whereas Warner does. Accordingly, one of ordinary skill
would not be dissuaded by anything in Manabe to incorporate the additional
feature of Warner relied on by the Examiner. A teaching away requires a
reference to actually criticize, discredit, or otherwise discourage the claimed
solution. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). “[T]hat
two inventions were designed to resolve different problems ... is
insufficient to demonstrate that one invention teaches away from another.”
Nat7 Steel Car, Ltd. v. Canadian Pac. Ry., Ltd., 357 F.3d 1319, 1339 (Fed.
Cir. 2004).
Appellant further argues modifying Manabe in accord with the
additional teaching of Warner would “ffustrate[] the purpose of the Manabe
method.” (App. Br. 16) (emphasis omitted.) Appellant bases this argument
on the premise that Manabe determines mechanical braking capacity “[i]f
the brake switch is off,” in contrast to Warner, “where the engine brake
control system is activated only by depressing the brake pedal.” (App.
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Application 13/307,812
Br. 17.) However, this argument is unpersuasive because Manabe also
determines mechanical braking energy when the brake switch is on.
(Manabe Fig. 6 (steps S5 through S13-1); col. 12,11. 26—34.) “The test for
obviousness is not whether the features of a secondary reference may be
bodily incorporated into the structure of the primary reference.” In re
Keller, 642 F.2d at 425. Instead, the relevant issue is “what the combined
teachings of the references would have suggested to those of ordinary skill
in the art.” Id. “Combining the teachings of references does not involve an
ability to combine their specific structures.” In re Nievelt, 482 F.2d 965, 968
(CCPA 1973).
Accordingly, we are not persuaded the Examiner errs in rejecting
independent claims 1, 10, 19, 32, and 36.
CONCLUSIONS
For the reasons stated above, we sustain the obviousness rejections of
claims 1, 10, 19, 32, and 36 over Manabe, Warner, and Faletti.
We also sustain the obviousness rejections of claims 2—9, 12, 14, 15,
20, 23, 26—29, 31, 33—35, and 37 over Manabe, Warner, and Faletti, of
claims 11,21, and 22 over Manabe, Warner, Faletti, and Soliman, of claims
17, 24, 25, and 40 over Manabe, Warner, Faletti, and Tanaka, of claims 18,
30, and 39 over Manabe, Warner, Faletti, and Nishina, and of claim 38 over
Manabe, Warner, Faletti, and Rettig, which rejections are not argued
separately with particularity. (App. Br. 23—25.)
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Application 13/307,812
DECISION
We affirm the Examiner’s obviousness rejections of claims 1—12, 15,
and 17-40.
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). See 37
C.F.R. § 41.50(f).
AFFIRMED
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