Ex Parte Leineweber et al

Patent Trial and Appeal BoardJan 14, 2013

10797680 (P.T.A.B. Jan. 14, 2013)

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. 10/797,680 03/09/2004 Thilo Leineweber 10191/3467 4908 26646 7590 01/14/2013 KENYON & KENYON LLP ONE BROADWAY NEW YORK, NY 10004 EXAMINER KISWANTO, NICHOLAS ART UNIT PAPER NUMBER 3664 MAIL DATE DELIVERY MODE 01/14/2013 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 ____________________ Ex parte THILO LEINEWEBER, AXEL STAMM, and STEPHAN DORENKAMP ____________________ Appeal 2010-005969 Application 10/797,680 Technology Center 3600 ____________________ Before: STEVEN D.A. MCCARTHY, PHILLIP J. KAUFFMAN, and GAY ANN SPAHN, Administrative Patent Judges. KAUFFMAN, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-005969 Application 10/797,680 2 STATEMENT OF CASE Appellants seek review of the Examiner’s rejection of claims 1, 2, and 5 under 35 U.S.C. § 102(b) as anticipated by Asada (US 6,434,471 B1; iss. Aug. 13, 2002). We have jurisdiction under 35 U.S.C. § 6(b). We reverse. The Invention Claims 1 and 5 are the independent claims on appeal. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A device for controlling a speed of a motor vehicle in terms of one of (a) a constant distance control in the case that at least one preceding vehicle is detected by a radar sensor and (b) a constant speed control in the case that no preceding vehicle is detected by a radar sensor, the device comprising: an arrangement for allowing a distance to a preceding vehicle to be set by a driver of the vehicle in the form of a time gap; an arrangement for changing longitudinal dynamics of the speed control when the time gap changes; an arrangement for increasing, given a decrease in the time gap, at least one of a maximum possible vehicle acceleration and a maximum possible vehicle deceleration implementable by a speed control system so that the vehicle is capable of at least one of accelerating and decelerating more quickly given the decrease in the time gap; and an arrangement for first activating, given the decrease in the time gap, deceleration devices of the vehicle at a shorter distance from the preceding vehicle. OPINION The Examiner found that Asada discloses an arrangement for increasing, given a decrease in the time gap, at least one of a maximum Appeal 2010-005969 Application 10/797,680 3 possible vehicle acceleration or deceleration implementable by a speed control system so that the vehicle is capable of at least accelerating or decelerating more quickly given the decrease in the time gap. Ans. 3-4 (citing Asada, col. 5, l. 40-col. 6, l. 4). This finding is based upon the Examiner’s interpretation that the increase in at least one of the maximum acceleration or deceleration called for by independent claims 1 and 5 “is boundless since it does not specify a rate of acceleration/deceleration” and “the mere fact that Asada teaches adjusting acceleration/deceleration reads upon [Appellants’] claim.” 1 Ans. 5. Contrary to the Examiner’s interpretation, “maximum possible vehicle acceleration” and “maximum possible vehicle deceleration,” as recited in independent claims 1 and 5, are not boundless terms. In the context of claims 1 and 5, these terms refer to the maximum possible vehicle acceleration or deceleration “implementable by a speed control system.” Further, the increase to these maximums is in response to “a decrease in the time gap.” In other words, claims 1 and 5 require that when the time gap is decreased, at least one of the maximum possible acceleration or the maximum possible deceleration that may be implemented by the speed control system is increased. See Spec. 2:13-15; 4:7-11; see also Reply Br. 2- 3. Asada discloses a technique for controlling vehicle spacing that changes vehicle-to-vehicle spacing smoothly and gently. Asada, col. 1, ll. 4- 5, 21-23; col. 4, ll. 22-27. In the embodiment relied upon by the Examiner, Asada discloses an embodiment having a selectable time gap (TO) spectrum 1 Though the Examiner states that the independent claims are ambiguous (Ans. 6), the Examiner did not reject these claims under 35 U.S.C. § 112, second paragraph, as indefinite (Ans. passim). Appeal 2010-005969 Application 10/797,680 4 of FAR, MEDIUM, and NEAR. Asada, col. 3, ll. 20-31; Ans. 3-4. In this embodiment, when the time gap select switch 5 is moved at once from FAR to NEAR (without stopping at MEDIUM), the time rate of change of the desired time gap T* is equal to a first value during a first period from FAR to MEDIUM (t21-t22), and is set to a second, greater value during a second period from MEDIUM to NEAR (t22-t23). Asada, col. 6, ll. 11-17; fig. 6. This change in the slope of the desired time gap T* at point t22 increases acceleration. Asada, col. 6, ll. 18-19. While the acceleration of the vehicle increases at point t22, the maximum possible vehicle acceleration implementable by the speed control system (speed control section 23) remains constant at 0.06 G. Asada, col. 6, ll. 20-21; see also col. 5, ll. 57-60; col. 8, ll. 17-19. Thus, in Asada when the time gap is decreased (e.g., when selectable time gap, TO, is changed from FAR to NEAR) the maximum possible acceleration that may be implemented by the speed control system (speed control section 23) remains constant at 0.06 G. Consequently, we agree with Appellants that Asada does not disclose an arrangement for increasing at least one of the maximum possible acceleration or deceleration implementable by the speed control system as called for in independent claims 1 and 5. App. Br. 4-5; Reply Br. 2-3. As such, we do not sustain the rejection of claims 1, 2, and 5.2 DECISION We reverse the Examiner’s decision to reject claims 1, 2, and 5. 2 Claim 2 depends from claim 1. Appeal 2010-005969 Application 10/797,680 5 REVERSED mls