Ex Parte Cund et al

Patent Trial and Appeal Board

Sep 19, 2017

13985107 (P.T.A.B. Sep. 19, 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.
13/985,107 01/27/2014 MarkCund 67582-014PUSl;JLR10-030Ul 7971
26096 7590 09/21/2017
CARLSON, GASKEY & OLDS, P.C.
400 WEST MAPLE ROAD
SUITE 350
BIRMINGHAM, MI 48009
EXAMINER
FAN, HONGMIN
ART UNIT PAPER NUMBER
2686
NOTIFICATION DATE DELIVERY MODE
09/21/2017 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):
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARK CUND and PAUL WIDDOWSON
Appeal 2017-005351
Application 13/985,107
Technology Center 2600
Before MAHSHID D. SAADAT, ALLEN R. MacDONALD, and
JOHN P. PINKERTON, Administrative Patent Judges.
MacDONALD, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2017-005351
Application 13/985,107
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 22-41. Claims 1—21 were cancelled. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.
Exemplary Claim
Exemplary claim 22 under appeal reads as follows:
22. An apparatus for monitoring a target object
external to a vehicle, the apparatus being operable to
determine whether the target object is a valid target
object in dependence on whether a value of a maximum
range Rmax from the vehicle at which the target object has
been detected exceeds a first prescribed value.
Rejections on Appeal
1. The Examiner rejected claims 22-41 under 35 U.S.C. § 112, second
paragraph, as indefinite.1
2. The Examiner rejected claims 22, 23, 27—29, 32, 33, 35, 36, 38, 40,
and 41 under 35 U.S.C. § 103(a) as being unpatentable over Deering
(US 5,173,859 A; issued Dec. 22, 1992).
1 The patentability of claims 23—41 is not separately argued from that of
claim 22. See App. Br. 2—8. Thus, except for our ultimate decision, claims
23—41 are not discussed further herein.
The Examiner also separately rejected claim 31 under
35 U.S.C. § 112, second paragraph, as indefinite for an alleged antecedent
basis issue. See Final Act. 4. However, the Examiner withdrew this
rejection in the Examiner’s Answer. See Ans. 8. Thus, this rejection is not
before us.
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Application 13/985,107
3. The Examiner rejected claims 24—26 under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Deering and Samukawa
(US 2004/0117090 Al; published June 17, 2004).
4. The Examiner rejected claims 34, 37, and 39 under
35 U.S.C. § 103(a) as being unpatentable over the combination of Deering
and Breuer (US 2012/0203438 Al; published Aug. 9, 2012).
Appellants ’ Contentions
1. Appellants contend that the Examiner erred in rejecting claim 22
under 35 U.S.C. § 112, second paragraph, because:
The Examiner’s rejection under 35 U.S.C. 112 is based on what
appears to be a misunderstanding of what the specification
teaches regarding a distance called “Rmax” in the claims.
According to the Examiner Rmax is not a distance between the
vehicle and the target, but is "a distance from the vehicle (to the
target) has been moved since the target had been detected."
Appellant respectfully submits that Rmax is consistently used in
the specification to describe a distance between a vehicle and a
target of interest (TOI), such as an object in a pathway of a
vehicle.
[T]he specification teaches using a distance from the vehicle
(e.g., R maxy Rlmax or R2max) for determining whether an
object can be considered a valid target object. [The specification
fails to support] the Examiner’s interpretation. Given that the
Examiner’s interpretation is not consistent with a substantial
portion of the description, the Examiner’s interpretation is not
a valid basis for rejecting the claims.
App. Br. 2-4, Appellants’ citations omitted, panel’s emphasis added; see
also App. Br. 5—6; Reply Br. 1—2.
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Application 13/985,107
2. Appellants also contend that the Examiner erred in rejecting claim
22 under 35 U.S.C. § 103(a) because:
Appellant respectfully submits that there is no prima facie case
of obviousness against any of Appellant’s claims, at least
because even if the Examiner’s proposed modifications to
[Deering] could be made there still is nothing within the result
corresponding to the first prescribed value and the
determination made according to Appellant’s claims.
Appellant respectfully submits that the distance RNGd described
in Deering is a threshold distance at which triggering of
automatic braking will occur (provided that it is not inhibited for
some reason) but that Deering does not teach or suggest to
categorize a detected object as either a valid object or an invalid
object in dependence on a maximum distance at which the
object is first detected. Deering is merely concerned with
providing “smooth transitioning between control modes placing
importance on minimizing control perturbations” (column 2,
lines 3 to 5).
Therefore the proposed modifications to Deering do not
provide a result that includes determining “whether the target
object is a valid target object in dependence on whether a value
of a maximum range Rmaxfrom the vehicle at which the target
object has been detected exceeds a first prescribed value”.
App. Br. 6—8, Appellants’ citations omitted, panel’s emphasis added; see
also Reply Br. 2—3.
Issues on Appeal
Did the Examiner err in rejecting claim 22 as indefinite?
Did the Examiner err in rejecting claim 22 as being obvious?
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Application 13/985,107
PRINCIPLES OF LAW
Claim Construction
A claim under examination is given its broadest reasonable
interpretation consistent with the underlying specification. See In re
American Acad, of Science Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004).
In the absence of an express definition of a claim term in the specification or
a clear disclaimer of scope, the claim term is interpreted as broadly as the
ordinary usage of the term by one of ordinary skill in the art would permit.
See In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379 (Fed.
Cir. 2007); see also In re Morris, YU F.3d 1048, 1054 (Fed. Cir. 1997).
Obviousness
“[T]he mere existence of differences between the prior art and [the
claim] does not establish non-obviousness.” See Dann v. Johnston, 425 U.S.
219, 230 (1976). Instead, the relevant question is “whether the difference
between the prior art and the subject matter in question is a [difference]
sufficient to render the claimed subject matter unobvious to one skilled in
the applicable art.” Dann, 425 U.S. at 228 (internal quotations and citations
omitted). Indeed, the Supreme Court made clear that when considering
obviousness, “the analysis need not seek out precise teachings directed to the
specific subject matter of the challenged claim, for a court can take account
of the inferences and creative steps that a person of ordinary skill in the art
would employ.” KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
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Application 13/985,107
ANALYSIS
As to Appellants’ above contention 1, we are persuaded the Examiner
erred. We agree with Appellants that the claimed “Rmax” is consistently used
in the specification to describe a maximum distance between a vehicle and a
target of interest, such as an object in a pathway of a vehicle. See App.
Br. 2-A (citing Spec. 2:1-9; 3:15-23; 5:5-9; 13:28-31; 14:33-36;
15:32—35). We further agree with Appellants that the Examiner’s
interpretation of the claimed “Rmax” as a distance the target has traveled
relative to the vehicle is too narrow in light of, and inconsistent with,
Appellants’ Specification. See Reply Br. 2.
Thus, we conclude that the Examiner has failed to show that claim 22
is indefinite under 35 U.S.C. § 112, second paragraph. Accordingly, we do
not sustain the rejection of claim 22 under 35 U.S.C. § 112, second
paragraph.
As to Appellants’ above contention 2, we are not persuaded the
Examiner erred. Appellants’ argument that Deering fails to teach or suggest
determining whether a target object is a valid target object is not
commensurate with the scope of claim 22. Appellants’ Specification
discloses that a “valid target object” is a target object representing a collision
threat to a vehicle. See Spec. 2:11—13. Deering discloses an adaptive
vehicle speed control system for an automotive vehicle that senses another
vehicle, detects an actual range between the two vehicles (i.e., “RNGa”),
calculates a desired range between the two vehicles (i.e., “RNGd”), and
automatically deaccelerates the automotive vehicle when RNGa < RNGd.
(See Deering 2:30—66). Thus, by disclosing that the adaptive vehicle speed
control system deaccelerates the automotive vehicle in response to the actual
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range between the two vehicles being less than a desired range, Deering also
teaches or suggests the adaptive vehicle speed control system determines the
other vehicle represents a collision threat to the automotive vehicle (i.e., the
claimed “valid target object”). Accordingly, the Examiner’s interpretation
of the claimed “determin[ing] whether the target object is a valid target
object in dependence on whether [Rmax] exceeds a first prescribe value” as
reading on Deering’s disclosure is reasonable in light of Appellants’
Specification.
Thus, we conclude the Examiner did not err in finding claim 22
obvious in light of the cited prior art references. Accordingly, we sustain the
rejection of claim 22 under 35 U.S.C. § 103(a).
CONCLUSIONS
(1) Appellants have established that the Examiner erred in rejecting
claims 22-41 as indefinite under 35 U.S.C. § 112, second paragraph.
(2) The Examiner has not erred in rejecting claims 22-41 as being
unpatentable under 35 U.S.C. § 103(a).
(3) Claims 22-41 are not patentable.
DECISION
We reverse the Examiner’s rejections of claims 22—41 as indefinite
under 35 U.S.C. § 112, second paragraph.
We affirm the Examiner’s rejection of claims 22—41 as being
unpatentable under 35 U.S.C. § 103(a).
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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).
AFFIRMED
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