Ex Parte KUNZ et al

Patent Trial and Appeal Board

Aug 31, 2017

13716414 (P.T.A.B. Aug. 31, 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.
13/716,414 12/17/2012 Michael KUNZ BOSC.P7732US/11603179 5130
24972 7590 09/05/2017
NORTON ROSE FULBRIGHT US LLP
1301 Avenue of the Americas
NEW YORK, NY 10019-6022
EXAMINER
NGUYEN, XU AN LAN T
ART UNIT PAPER NUMBER
3657
NOTIFICATION DATE DELIVERY MODE
09/05/2017 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):
nyipdocket@nortonrosefulbright.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL KUNZ and STEFAN STENGERT1
Appeal 2017-000635
Application 13/716,414
Technology Center 3600
Before MAHSHID D. SAADAT, LARRY J. HUME, and
JOHN P. PINKERTON, Administrative Patent Judges.
PINKERTON, Administrative Patent Judge
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1—17, which are all of the claims pending in the
application. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Appellants identify ROBERT BOSCH GmbH of Stuttgart in the Federal
Republic of Germany as the real party in interest. App. Br. 2.
Appeal 2017-000635
Application 13/716,414
STATEMENT OF THE CASE
Introduction
Appellants’ disclosed and claimed invention is generally directed to
operating a regenerative braking system of a vehicle. Spec. 1,11. 7—8.2
Claim 11 is representative and reproduced below (with the disputed
limitation emphasized)'.
11. A control unit for a regenerative braking system,
comprising:
a blending device with the aid of which a first differential
variable with regard to an increased generator braking torque of
a generator of the braking system and a second differential
variable with regard to a reduced generator braking torque of
the generator are receivable, taking at least into account the
received first differential variable and a predefined hydraulic
efficiency characteristic curve of the braking system, a first
setpoint variable with regard to a brake fluid volume to be
shifted from at least one brake circuit of the braking system to
at least one storage volume of the braking system being
establishable, and taking into account the received second
differential variable and the predefined hydraulic efficiency
characteristic curve, a second setpoint variable with regard to a
compensating brake fluid volume to be shifted from the at least
one storage volume to the at least one brake circuit being
establishable;
a control unit with the aid of which at least one first
control signal corresponding to the first setpoint variable is
output-able to at least one first component of the at least one
brake circuit such that an actual brake fluid volume
corresponding to the established first setpoint variable is
2 Our Decision refers to the Final Action mailed Sept. 23, 2015 (“Final
Act.”); Appellants’ Appeal Brief filed Mar. 17, 2016 (“App. Br.”) and Reply
Brief filed Oct. 10, 2016 (“Reply Br.”); the Examiner’s Answer mailed
Aug. 10, 2016 (“Ans.”); and the original Specification filed Dec. 17, 2012
(“Spec.”).
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Application 13/716,414
transferable from at least one of a brake master cylinder and
the at least one brake circuit to the at least one storage volume
with the aid of the at least one first component, and with
the aid of which at least one second control signal
corresponding to the second setpoint variable is output-able to
at least one of the at least one first component and at least one
second component of the at least one brake circuit such that the
actual brake fluid volume previously transferred to the at least
one storage volume is transferable at least partially from the at
least one storage volume to the at least one brake circuit; and
a characteristic curve establishing device with the aid of
which at least one reaction variable with regard to a hydraulic
reaction of the braking system to the actual brake fluid volume
transfered at least partially from the at least one storage
volume to the at least one brake circuit is receivable, and the
hydraulic efficiency characteristic curve of the braking system
is update-able by at least taking into account the at least one
ascertained reaction variable with regard to the hydraulic
reaction of the braking system to the actual brake fluid volume
transferred at least partially from the at least one storage
volume to the at least one brake circuit;
wherein the at least one reaction variable corresponds to
at least one of (i) a brake pressure/differential volume ratio, (ii)
a brake pressure/driver braking force ratio, (Hi) a brake
pressure/driver brake pressure ratio, and (iv) a brake
pressure/driver braking distance ratio.
Rejections on Appeal
Claims 11—15 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by Willmann et al. (US 5,853,229; issued Dec. 29, 1998)
(“Willmann”).
Claims 1—10, 16, and 17 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Willmann and Logan et al. (US 2010/0256885 Al;
published Oct. 7, 2010) (“Logan”).
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Application 13/716,414
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments in the Briefs and are not persuaded the Examiner erred. Unless
otherwise noted, we adopt as our own the findings and reasons set forth by
the Examiner in the Office Action from which this appeal is taken (Final
Act. 2—14) and in the Examiner’s Answer (Ans. 2—5), and we concur with
the conclusions reached by the Examiner. For emphasis, we consider and
highlight specific arguments as presented in the Briefs.
Rejection of Claims 11—15 under § 102(b)
Appellants argue the Examiner erred in rejecting claims 11 and 15
because Willmann does not disclose the feature that “the at least one
reaction variable corresponds to at least one of (i) a brake
pressure/differential volume ratio, (ii) a brake pressure/driver braking force
ratio, (iii) a brake pressure/driver brake pressure ratio, and (iv) a brake
pressure/driver braking distance ratio f as recited in claims 11 and 15. App.
Br. 15—17; Reply Br. 6. In particular, Appellants argue it is well known that
“driver braking distance corresponds to the distance required to bring a
vehicle to a full stop after the brakes are applied,” and “does not correspond
to the distance the pedal travels due to the force from the driver’s foot.” See
App. Br. 16—17.
We are not persuaded by Appellants’ argument the Examiner erred.
Instead, we agree with the Examiner’s conclusion that the claimed “driver
braking distance” is the “pedal travel distance” because, as the Examiner
finds, (1) Appellants’ Specification does not specifically define “driving
braking distance” and (2) the instances in which brake “distance” is
mentioned “are for the pedal traveling distances” rather than “vehicle
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Application 13/716,414
braking distances.” Ans. 3^4 (citing Spec. 2:21—26, 16:8—13, 19:16—22).
The Examiner also finds, and we agree, Willmann discloses the “brake
pressure/driver braking distance ratio,” as recited in phrase (iv) of the
disputed limitation of claims 11 and 15, because “Willmann shows clearly in
figure 5, a graph of braking torque versus pedal travel.” Id. at 4. Thus, a
preponderance of the evidence supports the Examiner’s finding that
Willmann discloses the disputed limitation of claims 11 and 15.
In the Reply Brief, Appellants make three new arguments regarding
claims 11 and 15. Appellants argue Willmann does not disclose the claim
features of (1) a blending device, (2) a control unit, and (3) a characteristic
curve establishing device. Reply Br. 2—6. Because these arguments are
raised by Appellants for the first time in the Reply Brief not in response to a
shift in the Examiner’s position or without otherwise showing good cause,
they are waived. See 37 C.F.R. § 41.41(b)(2); see also Ex parte Borden, 93
USPQ2d 1473, 1474 (BPAI 2010) (informative) (“[T]he reply brief [is not]
an opportunity to make arguments that could have been made in the
principal brief on appeal to rebut the Examiner’s rejections, but were not.”).
Thus, we sustain the Examiner’s rejection of independent claims 11
and 15, and dependent claims 2—10, which are not argued separately, for
anticipation by Willmann under § 102(b).
Rejection of Claims 1—10, 16, and 17 under § 103(a)
Claims 1—10
Regarding claims 1—10, Appellants argue, for the reasons argued with
respect to claims 11 and 15, that Willmann does not disclose the same
feature of claim 1 as the disputed feature of claims 11 and 15. App. Br. 18;
Reply 8. Appellants also argue Logan does not cure the deficiencies of
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Willmann. App. Br. 18. In the Reply Brief, Appellants argue, for the first
time, that Willmann does not disclose (1) “the claim 1 feature (which is
performed by the blending device of claims 11 and 15 . . .) of increasing a
generator braking torque,” (2) “the claim 1 feature (which is performed by
the characteristic curve establishing device as described above as to claims
11 and 15) of ascertaining at least one reaction variable,” and (3) “updating
the hydraulic efficiency characteristic curve of the braking system, at least
taking into account the at least one ascertained reaction variable.” Reply
Br. 7—8) (emphasis omitted).
For the reasons discussed supra regarding the rejection of claims 11
and 15 under § 102(b), we are not persuaded the Examiner erred in finding
Willmann teaches the disputed limitation of claim 1 — “the at least one
reaction variable corresponds to at least one of. . . (iv) a brake
pressure/driver braking distance ratio.” We are not persuaded by
Appellants’ arguments regarding Logan because, as indicated, there are no
deficiencies in the teachings of Willmann. Further, for the reasons stated
supra, Appellants’ arguments raised for the first time in the Reply Brief are
waived.
Claims 16 and 17
Method claim 16 recites:
if the at least one ascertained reaction variable exceeds the at
least one predefined minimum variable, the transfer of the actual
brake fluid volume, previously transferred to the at least one
storage volume, from the at least one storage volume to the at
least one brake circuit is terminated despite a residual volume
still being present in the at least one storage volume.
See App. Br. (Claims App’x 6—7) (emphasis added). Appellants argue that
the portions of Willmann cited in the Final Office Action (col. 4,11. 3—12),
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and in the Answer (Fig. 4, steps 316 and 318), do not teach the feature of
terminating the transfer of the brake fluid from the storage chamber to the
brake circuit. App. Br. 18—19; Reply Br. 8—9.
We are not persuaded by Appellants’ argument. We note the disputed
limitation of claim 16 is a conditional limitation because the step of
terminating the transfer of the brake fluid from the storage chamber to the
brake circuit occurs only “if the at least one ascertained reaction variable
exceeds the at least one predefined minimum variable.” In the event the
reaction variable does not exceed the predefined minimum variable, the step
of terminating the transfer of brake fluid is not performed. In other words,
the step of terminating the transfer is performed if the condition is met, but it
is not performed if the condition is not met. Thus, the broadest reasonable
interpretation of the disputed limitation is the one in which the condition is
not met and the step of terminating the transfer of brake fluid is not
performed. Conditional steps employed in a method claim need not be
found in the prior art if, under the broadest reasonable construction, the
method need not invoke the steps. Ex parte Schulhauser, No. 2013-007847,
2016 WL 6277792, at *3-6 (PTAB April 28, 2016) (precedential)
(concluding the broadest reasonable interpretation of a claim encompassed
situations in which conditional method steps “need not be reached”).
Accordingly, because the broadest reasonable interpretation of the
disputed limitation does not require performance of the terminating step, the
Examiner is not required to present evidence of this step. See Ex parte
Schulhauser at *4 (“The Examiner did not need to present evidence of the
obviousness of the remaining steps of claim 1 that are not required to be
performed under a broadest reasonable interpretation of the claim.”).
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Similarly, method claim 17 recites:
if the at least one ascertained reaction variable is below the at
least one predefined minimum variable after the transfer of the
actual brake fluid volume to the at least one brake circuit, an
additional brake fluid volume is transferred from at least one of
the brake master cylinder and a brake fluid reservoir to the at
least one brake circuit.
See App. Br. (Claims App’x 8) (emphasis added). Appellants argue the
Examiner has not shown that Willmann teaches the step of transferring the
additional brake fluid after the brake fluid volume at the storage volume is
transferred. App. Br. 19-20; Reply Br. 9.
We are not persuaded by Appellants’ argument regarding claim 17.
Like the disputed limitation of claim 16, the disputed limitation of claim 17
is a conditional limitation because the step of transferring the additional fluid
is performed only “if the at least one ascertained reaction variable is below
the at least one predefined minimum variable after the transfer of the actual
brake fluid volume to the at least one brake circuit.” If this condition is not
met, the step of transferring the additional fluid is not performed. The
broadest reasonable interpretation of the disputed limitation, therefore, is
where the condition is not met and the step of transferring the additional
fluid is not performed.
Accordingly, because the broadest reasonable interpretation of the
disputed limitation of claim 17 does not require performance of the step of
transferring the additional brake fluid, the Examiner is not required to
present evidence of this step. See Ex parte Schulhauser at *4.
Motivation to Combine
With respect to claims 1—10, 16, and 17, Appellants argue the
Examiner fails to “provide proper evidence of a motivation for modifying or
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combining the references to provide the claimed subject matter” (emphasis
omitted) and that the combination of references is based only on “conclusory
hindsight, reconstruction and speculation.” App. Br. 20-23; Reply
Br. 10-12.
We are not persuaded by Appellants’ arguments. First, the Supreme
Court has rejected the rigid requirement of demonstrating a teaching,
suggestion, or motivation in the references to show obviousness. See KSR
Int’l Co., v. Teleflex Co., 550 U.S. 398, 415—16 (2007); see also In re
Ethicon, Inc., 844 F.3d 1344, 1350 (Fed. Cir. 2017). Second, regarding
claims 1,16, and 17, the Examiner cites Logan “to teach the concept of
updating the look-up tables (i.e. characteristic curves) of various variables in
a brake system in order to control the brake system in real time.” Final
Act. 8, 13, 14. And, with respect to each of these claims, the Examiner
finds:
It would have been obvious to one of ordinary skill in the art at
the time of the invention to have modified the method of
Willmann to include a step of updating the various characteristic
curves including the hydraulic efficiency characteristic curve in
order to provide the brake control unit with real time data which
would improve the performance of the brake system.
Id. at 8-9, 13, 14.
Appellants have not specifically addressed these findings or presented
arguments the Examiner erred. Accordingly, we find the rejection of
claims 1,16, and 17 is supported by “some articulated reasoning with some
rational underpinning” to combine known elements in the manner required
by the claim. See KSR, 550 U.S. at 418.
Third, we are not persuaded by Appellants’ argument that the
Examiner engaged in impermissible hindsight or speculation. It must be
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recognized that any judgment on obviousness is in a sense necessarily a
reconstruction based upon hindsight reasoning. However, so long as it takes
into account only knowledge which was within the level of ordinary skill at
the time the claimed invention was made, and does not include knowledge
gleaned only from the Appellants’ disclosure, such a reconstruction is
proper. See In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971). Here,
we conclude the Examiner did not use impermissible hindsight because the
rejection is based on the combination of references and what they would
have taught or suggested to a person of ordinary skill in the art.
Accordingly, for the reasons discussed above, we sustain the
Examiner’s rejection of independent claim 1 and dependent claims 2—10,
which are not argued separately. We also sustain the Examiner’s rejection
of claims 16 and 17.
DECISION
We affirm the Examiner’s rejections of claims 11—15 under 35 U.S.C.
§ 102(b).
We affirm the Examiner’s rejections of claims 1—10, 16, and 17 under
35 U.S.C. § 103(a).
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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