Ex Parte Dumalski et al

Patent Trials and Appeals BoardMar 27, 2019

13804932 - (D) (P.T.A.B. Mar. 27, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/804,932 03/14/2013 Josh Dumalski 26874 7590 03/29/2019 FROST BROWN TODD LLC 3300 Great American Tower 301 East Fourth Street Cincinnati, OH 45202 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 0100024.0604562 1054 EXAMINER KUHFUSS,ZACHARYL ART UNIT PAPER NUMBER 3617 NOTIFICATION DATE DELIVERY MODE 03/29/2019 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): patents@fbtlaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JOSH DUMALSKI, DAN BONNET, GREG THOMSON, and KYLE LOCKERT Appeal 2018-001071 Application 13/804,932 1 Technology Center 3600 Before BIBHU R. MOHANTY, MICHAEL C. ASTORINO, and BRUCE T. WIEDER, Administrative Patent Judges. WIEDER, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. Â§ 134 from the Examiner's final rejection of claims 1-10. We have jurisdiction under 35 U.S.C. Â§ 6(b). We REVERSE. CLAIMED SUBJECT MATTER Appellants' invention "relates to the field of vehicles for used [sic] on railway tracks and conventional roads and highways, and in particular 1 According to Appellants, the real party in interest is Brandt Road Rail Corporation. (Appeal Br. 3.) Appeal 2018-001071 Application 13/804,932 controlling the proportion of weight between the driving wheels and the rail wheels that support the vehicle on the track rails." (Spec. ,r 1.) Claims 1 and 6 are the independent claims on appeal. Claim 1 is illustrative. It recites ( emphasis added): 1. A road/rail vehicle apparatus comprising: a vehicle with front and rear road wheels, an engine operative to drive the rear road wheels, and an indicator of actual vehicle speed at an operator's station; retractable front and rear rail wheels mounted on the vehicle and movable from a raised road position where the rail wheels are above a road surface for operation in a road mode, to a lowered rail position where the rail wheels engage rails of a railroad track for operation in a rail mode; a suspension system adjustable in the rail mode to vary a weight proportion of vehicle weight that is a tractive weight carried by the rear road wheels and a guidance weight carried by the rear rail wheels; a suspension control at the operator's station operative to adjust the suspension system to provide a selected weight proportion; wherein a maximum allowable vehicle speed decreases as the tractive weight increases and the guidance weight decreases, and for the selected weight proportion the maximum allowable speed is selected to ensure that the guidance weight provides sufficient downward guidance force to ensure engagement of the rear rail wheels with rails of a railroad track, and wherein a maximum speed indicator at the operator's station indicates the maximum allowable vehicle speed for the selected weight proportion. REJECTION Claims 1-10 are rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Woollam (US 5,016,544, iss. May 21, 1991), Gelenius 2 Appeal 2018-001071 Application 13/804,932 (US 3,752,249, iss. Aug. 14, 1973), Polivka (US 2002/0062181 Al, pub. May 23, 2002), and Bush (US 5,740,742, iss. Apr. 21, 1998). ANALYSIS Obviousness is a legal conclusion involving a determination of four underlying facts. Under Â§ 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. Against this background, the obviousness or nonobviousness of the subject matter is determined. Such secondary considerations as commercial success, long felt but unsolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented. KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,406 (2007) (quoting Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 17-18 (1966)). With regard to the scope and content of the prior art, the Examiner finds that Woollam teaches a road/rail vehicle with retractable guide wheels (32, 36) that enable the vehicle to safely travel on rails. The retractable guide wheels (32, 36) are equipped with air bag suspension units to control the amount of weight loaded on the guide wheels (32, 36) in proportion to the amount of weight loaded on the rubber tire drive wheels (44). (Col. 6, lines 26-30). When the vehicle speed increases, the weight on the retractable guide wheels (32, 34) is increased and the weight on the rubber tire drive wheels (44) is decreased. This active control of the vehicle weight proportion decreases wear on the rubber tire drive wheels ( 44) and optimizes tractive effort. (Col. 6, lines 33-57) (Fig. 11 ). Woollam further teaches that in high speed situations, where the need for traction is low, "the rubber tired rail drive wheels 44 can be off-loaded to as low as 4,000 pounds with the 3 Appeal 2018-001071 Application 13/804,932 rail wheel and axle sets 3 2 and 3 6 carrying loads of 21,000 and 19,000 pounds respectively." (Col. 7, lines 32-37). Thus, Woollam teaches that as the vehicle speed increases the weight proportion can be properly adjusted, subject to certain minimum weight limits. This suggests that it is known to optimize the relationship between vehicle speed and weight proportioning, subject to certain safety limits. (Answer 3--4.) The Examiner further finds that Gelenius teaches an electrical control for limiting locomotives to a maximum speed while maximizing traction. (Col. 1, lines 18- 28). The system is designed in a failsafe manner to prevent excessive vehicle speed. (Col. 6, lines 19-26). Thus, Gelenius suggests setting a maximum speed for safety purposes while optimizing other conditions, such as traction. (Id. at 4.) The Examiner further finds that "Polivka ... teach[ es] a speed limit indicator (84) located in the locomotive. (Para. [0023]) (Fig. 3)." (Id.) Based on these findings, the Examiner determines: Combining what is suggested by the references, Woollam suggests that it is known to optimize the relationship between vehicle speed and weight proportioning, subject to certain safety limits. Gelenius suggests setting a maximum speed as a safety limit. Therefore, it would be obvious for Woollam to subject the speed/weight optimization to a maximum speed to ensure safety. Polivka further suggests that it would be obvious to display the maximum speed to the operator. (Id. at 5.) Appellants disagree and argue that although the art of record discloses a relationship between vehicle weight proportioning and vehicle speed, it does so only in connection with actual vehicle speed, rather than a maximum allowable vehicle speed, as discussed below. Unlike actual vehicle speed, 4 Appeal 2018-001071 Application 13/804,932 maximum allowable vehicle speed does not necessarily describe the present operating condition of a vehicle, but rather the upper limit of a recommended operational range for the vehicle. (Appeal Br. 11.) Moreover, Appellants argue, although Gelenius teaches the general concept of a maximum vehicle speed, it fails to cure the deficiencies of W oollam with respect to a maximum vehicle speed that is determined "for" a "selected vehicle weight proportion," as recited in claim 1. In that regard, Gelenius fails to teach that its maximum vehicle speed is determined as a function of vehicle weight proportion or of any other dynamic variable of the vehicle, so as to be "for" a "selected" iteration of the variable. Gelenius teaches only a static maximum vehicle speed that remains constant and is applied across all operating conditions of its vehicle. (Id. at 13.) Thus, Appellants conclude, "[ t ]he art of record, considered as a whole, fails to even contemplate a relationship between vehicle weight proportion and maximum allowable vehicle speed in which the maximum allowable vehicle speed is determined specifically as a function of vehicle weight proportion, which can and does vary during vehicle operation." (Reply Br. 2.) We are persuaded of error. Claim 1 recites that "a maximum speed indicator at the operator's station indicates the maximum allowable vehicle speed for the selected weight proportion." The portions of Gelenius relied on by the Examiner disclose that an "object of the invention [is] to provide an apparatus serving the dual function of providing maximum traction during vehicle acceleration and limiting vehicle velocity by reducing the engine torque when a driven wheel slips excessively or the vehicle speed exceeds a preset value." (Gelenius, col. 1, 11. 23-28.) In other words, Gelenius discloses responding in real time 5 Appeal 2018-001071 Application 13/804,932 to a wheel slippage event, and also monitoring a preset maximum speed limit. But the Examiner does not indicate that Gelenius discloses determining (or indicating/displaying) a maximum speed for a selected weight proportion, as opposed to responding to a wheel slippage event that is occurring, presumably, at a speed below the preset maximum vehicle speed value. The Examiner does not rely on the other cited art to cure this deficiency. "' [T]here must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness."' KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398,418 (2007) (citing In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)). Here, the Examiner does not sufficiently explain why, in view of the cited art, it would have been obvious to set a speed limit based on the selected weight proportion, rather than presetting a single maximum vehicle speed limit and responding in real time to a wheel slippage condition, should such slippage occur, as taught by Gelenius. Therefore, we will reverse the rejection of claim 1 and dependent claims 2-5 under Â§ 103. Independent claim 6 contains similar language and the Examiner's rejection of claim 6 relies on similar reasoning. Therefore, for similar reasons we will also reverse the rejection of claim 6, and dependent claims 7-10 underÂ§ 103. DECISION The Examiner's rejection of claims 1-10 under 35 U.S.C. Â§ 103(a) is reversed. REVERSED 6