Ex Parte Murakami et al

Patent Trial and Appeal BoardMar 27, 2017

13191823 (P.T.A.B. Mar. 27, 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. 13/191,823 07/27/2011 Y oshifumi Murakami MNL-2018-2738 4846 23117 7590 03/29/2017 NIXON & VANDERHYE, PC 901 NORTH GLEBE ROAD, 11TH FLOOR ARLINGTON, VA 22203 EXAMINER INGRAM, THOMAS P ART UNIT PAPER NUMBER 3668 NOTIFICATION DATE DELIVERY MODE 03/29/2017 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): PTOMAIL@nixonvan.com pair_nixon @ firsttofile. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte YOSHIFUMI MURAKAMI and TOSHIFUMI HAYAMI Appeal 2014-009527 Application 13/191,82s1 Technology Center 3600 Before STEFAN STAICOVICI, EDWARD A. BROWN, and LEE L. STEPINA, Administrative Patent Judges. STAICOVICI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Yoshifumi Murakami and Toshifumi Hayami (Appellants) appeal under 35 U.S.C. § 134(a) from the Examiner’s final decision rejecting claims 1—6. We have jurisdiction over this appeal under 35 U.S.C. § 6(b). SUMMARY OF DECISION We REVERSE. 1 According to Appellants, Denso Corporation is the real party in interest. Appeal Br. 3 (filed Mar. 13, 2014). Appeal 2014-009527 Application 13/191,823 INVENTION Appellants’ invention “relates to a malfunction diagnosing apparatus for a vehicle.” Spec. 1,11. 10—11. Claims 1—6 are independent. Claim 1 is illustrative of the claimed invention and reads as follows: 1. A malfunction diagnosing apparatus for a vehicle, which has at least one of an internal combustion engine and an electric motor as a driving source for the vehicle, comprising: an acceleration detecting device for detecting an operational condition of an acceleration pedal; a brake detecting device for detecting an operational condition of a brake pedal; an acceleration opening degree setting device for setting an acceleration opening degree for a normal control operation based on an operational amount of the acceleration pedal detected by the acceleration detecting device; an output limiting device for carrying out an output limiting control in order to limit an output of the driving source by limiting the acceleration opening degree for the normal control operation, when an operation of the acceleration pedal is detected by the acceleration detecting device and an operation of the brake pedal is detected by the brake detecting device; and a malfunction diagnosing device for calculating a required output value for a malfunction diagnosis based on the operational amount detected by the acceleration detecting device, setting a malfunction determining threshold in accordance with the required output value for the malfunction diagnosis, and comparing an estimated output value of the driving source or a control command value outputted from an engine control unit to the driving source with the malfunction determining threshold so as to determine whether there is a malfunction in a control system for the driving source, wherein the malfunction diagnosing device limits the required output value for the malfunction diagnosis to a 2 Appeal 2014-009527 Application 13/191,823 predetermined limiting value which is equal to or close to the acceleration opening degree for the normal control operation that is limited by the output limiting device, when the operation of the acceleration pedal is detected by the acceleration detecting device and the operation of the brake pedal is detected by the brake detecting device. REJECTIONS The following rejections are before us for review: I. The Examiner rejected claims 1, 2, 4, and 5 under 35 U.S.C. § 102(e) as being anticipated by Debs (US 2011/0264354 Al, pub. Oct. 27, 2011). II. The Examiner rejected claims 3 and 6 under 35 U.S.C. § 103(a) as being unpatentable over Debs and Faye (US 2001/0024159 Al, pub. Sept. 27, 2001). ANALYSIS Rejection I Each of independent claims 1 and 2 recites, inter alia, “a malfunction diagnosing device for calculating a required output value for a malfunction diagnosis based on the operational amount detected by the acceleration detecting device [and] setting a malfunction determining threshold in accordance with the required output value for the malfunction diagnosis.” Appeal Br. 19—20 (Claims App.). Similarly, each of independent claims 4 and 5 recites “an electronic control unit configured to . . . calculate a required output value for a malfunction diagnosis based on the operational amount of the acceleration pedal [and] set a malfunction determining 3 Appeal 2014-009527 Application 13/191,823 threshold in accordance with the required output value for the malfunction diagnosis.” Id. at 22—23. The Examiner finds that Debs discloses the above-mentioned limitations as Debs’s “error detection module may determine the accelerator is stuck when ... the position of the accelerator is greater than an accelerator position threshold.” Final Act. 5, 7, 9 (transmitted July 1, 2013) (citing Debs 26—30); see also id. at 11 (citing Debs 126). Appellants argue that “Debs does not disclose or suggest changing the threshold . . . depending on, for example, an operational condition of the engine (or a required output value of the engine).” Appeal Br. 18; see also id. at 15, 17. According to Appellants, the claimed “malfunction determining threshold is calculated based on the required output value of the driving source, which is calculated based on the acceleration opening degree.” Id. at 14 (emphasis added). In response, the Examiner takes the position “that the accelerator threshold [in Debs] is changed when both the accelerator and brake pedal[s] are operated at the same time.” Ans. 6 (transmitted July 1, 2014). According to the Examiner, [T]he invention of Debs first determines if the accelerator is stuck by checking if the accelerator and brake pedal are being depressed at the same time; if it is determined that the accelerator and brakes are applied at the same time, remedial action is taken. The exemplary remedial action Debs takes, as shown in paragraph 29, is to reset the accelerator position by setting the current known position of the accelerator as the idle position. Id. at 4. The claimed malfunction diagnosing device determines whether there is a malfunction in a control system for a driving source by calculating a 4 Appeal 2014-009527 Application 13/191,823 required output value based on a detected acceleration opening degree of an acceleration pedal and setting a threshold value in accordance with the calculated required output value. See Appeal Br. 19; see also Spec. 8,11. 11— 20. As such, in determining whether there is a malfunction in a control system for a driving source, the malfunction determining threshold is set in accordance with a detected acceleration opening degree of an acceleration pedal. In contrast, Debs’s error detection module 60 determines whether accelerator 44 is stuck by comparing, inter alia, the position of accelerator 44 to a set accelerator position threshold (APth). See Debs |26. Debs fails to disclose whether the accelerator position threshold APth is set in accordance with a detected acceleration opening degree of accelerator 44. See Debs 26. In fact, Debs does not disclose in any manner how accelerator position threshold APth is determined, but merely discloses that it is a known value. Furthermore, we appreciate the Examiner’s position that the accelerator threshold in Debs changes when operating the accelerator and brake pedals at the same time. See Ans. 5—6. However, in the Examiner’s hypothetical example, the change in Debs’s accelerator threshold is for limiting the output of a driving source when both accelerator and brake pedals are pressed, and not for determining whether there is a malfunction in a control system for a driving source, as called for by each of independent claims 1, 2, 4, and 5. See Debs Tflf 29, 30. In other words, the change in Debs’s accelerator threshold is not for determining whether there is a malfunction in Debs’s accelerator 44. Rather, as noted above, the 5 Appeal 2014-009527 Application 13/191,823 determination of whether there is a malfunction in Debs’s accelerator 44 requires a comparison between the position of accelerator 44 and a known accelerator position threshold APth. Accordingly, Debs does not disclose setting accelerator position threshold APth in accordance with a detected acceleration opening degree of accelerator pedal 44, as called for by each of independent claims 1, 2, 4, and 5. In conclusion, for the foregoing reasons, we do not sustain the rejection under 35 U.S.C. § 102(b) of claims 1, 2, 4, and 5 as being anticipated by Debs. Rejection II Independent claim 3 recites the same limitation as noted above for independent claims 1 and 2, whereas independent claim 6 recites the same limitation as noted above for independent claims 4 and 5. See Appeal Br. 21, 24. The Examiner’s use of the disclosure of Faye does not remedy the deficiency of Debs discussed supra. See Final Act. 11—16. As such, for the same reasons as discussed above, we also do not sustain the rejection under 35 U.S.C. § 103(a) of claims 3 and 6 as unpatentable over Debs and Faye. SUMMARY The Examiner’s decision to reject claims 1—6 is reversed. REVERSED 6