Ex Parte Reisner

Patent Trial and Appeal BoardNov 14, 2013

11403216 (P.T.A.B. Nov. 14, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte RONALD CHRISTOPHER REISNER ____________ Appeal 2011-012197 Application 11/403,216 Technology Center 3600 ____________ Before: JOHN C. KERINS, WILLIAM A. CAPP and BEVERLY M. BUNTING, Administrative Patent Judges. CAPP, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant seeks our review under 35 U.S.C. § 134 of the final rejection of claims 6-14. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Appeal 2011-012197 Application 11/403,216 - 2 - THE INVENTION Appellant’s invention relates to remote vehicle braking systems. Spec. 1. Claim 6, reproduced below, is illustrative of the subject matter on appeal. 6. A vehicle braking method comprising: providing an electromagnetic loop, wherein the electromagnetic loop is located on or under a roadway; detecting a vehicle, wherein the vehicle is detected via electromagnetic variance in the electromagnetic loop as the vehicle electromagnetically interacts with the loop; providing a traffic control device, wherein the traffic control device is configured to calculate the position and velocity of the detected vehicle in relation to the status of a traffic control zone and to determine whether the condition of the vehicle, as detected in relation to the status of the traffic control zone, is safe; transmitting braking signals from the electromagnetic loop, wherein the braking signals are initiated by the traffic control device if the condition of the vehicle is determined to be unsafe; and receiving the signals, by the vehicle, to remotely initiate braking of the vehicle. THE REJECTIONS The Examiner relies upon the following as evidence in support of the rejections: Paufve Nishikawa Schmidt Allen Bachelder Isaji US 3,085,646 US 5,913,375 US 2004/0193363 A1 US 6,864,804 B1 US 2005/0104745 A1 US 2005/0128063 A1 Apr. 16, 1963 Jun. 22, 1999 Sep. 30, 2004 Mar. 8, 2005 May 19, 2005 Jun. 16, 2005 Appeal 2011-012197 Application 11/403,216 - 3 - The following rejections are before us for review: 1. Claims 6, 9, 11 and 12 are rejected under 35 U.S.C. § 103(a), as being unpatentable over Allen and Schmidt. 2. Claim 7 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Allen, Schmidt and Isaji. 3. Claim 8 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Allen, Schmidt and Bachelder. 4. Claim 10 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Allen, Schmidt and Nishikawa. 5. Claims 13 and 14 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Allen, Schmidt and Paufve. OPINION Unpatentability of Claims 6, 9, 11 and 12 Claim 6 The Examiner finds that Allen discloses all of the elements of claim 6 except for transmission of braking signals. Ans. 4. The Examiner relies on Schmidt as disclosing the missing element. Id. The Examiner concludes that it would have been obvious to a person of ordinary skill in the art at the time of the invention to modify the apparatus of Allen with the ability to remotely control brakes, as taught by Schmidt. Id. According to the Examiner, a person of ordinary skill in the art would do this to remotely avoid obstacles. Id. Appellant traverses the Examiner’s rejection by arguing that Allen’s electromagnetic loops are not used to transmit braking signals. App. Br. 14. Appellant argues that Schmidt uses beacons, not underground loops, to transmit signals to a vehicle receiver. App. Br. 16. Appellant argues that Appeal 2011-012197 Application 11/403,216 - 4 - Appellant’s non-obvious, technological advancement is using an electromagnetic loop to transmit braking signals to a vehicle. App. Br. 19. Appellant argues that Allen and Schmidt fail to disclose the use of electromagnetic loops to transmit signals to a vehicle and, furthermore, fail to disclose how such an innovation would or could be implemented. App. Br. 19. In response, the Examiner states that Appellant’s arguments lack merit because both Allen and Schmidt use electromagnetic signals to communicate with vehicles. Ans. 8. The Examiner concludes that it would have been obvious to use electromagnetic loops in the ground to control a vehicle as such merely employs known, established infrastructure. Id. Appellant’s argument that Allen and Schmidt each lack an element of claim 6 is not persuasive. Non-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references. In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986); In re Keller, 642 F.2d 413, 425 (CCPA 1981). Appellant’s argument that Allen and Schmidt lack a teaching disclosure as to how the use of an electromagnetic loop to transmit signals would or could be implemented is also unpersuasive. The entirety of Appellant’s teaching disclosure on this aspect of the invention is stated below: . . . to assist in facilitating proper vehicular behavior, an electromagnetic loop, such as loop 20, may be configured to transmit electromagnetic braking signals, such as signal 29, to a vehicle, such as vehicle 100 . . . The signals, such as signal 29 emitted from loop 20, may be radio frequency (RF) signals, or other electromagnetic signals such as infrared (IR) signals. Appeal 2011-012197 Application 11/403,216 - 5 - Spec. 7-8. In failing to provide a more detailed teaching disclosure, Appellant’s Specification essentially presumes that a person of ordinary skill in the art already knows how to configure an electromagnetic loop to function as a transmitter. The fact that Appellant did not deem it necessary to furnish a more detailed teaching disclosure on “how to” configure an electromagnetic loop to function as a transmitter undermines Appellant’s argument that Allen and Schmidt lack such a detailed disclosure and supports the Examiner’s position that it would have been obvious to use “established infrastructure” to achieve the claimed invention. Ans. 8; see Streck, Inc. v. Research & Diagnostic Sys., Inc., 665 F.3d 1269, 1288 (Fed. Cir. 2012) (a patent need not teach, and preferably omits, what is well known in the art). Recently, our supervising Court admonished the Board to take an expansive and flexible approach to the obviousness analysis. Randall Mfg. v. Rea, -- F.3d --, 2013 WL 5813334, *4 (Fed. Cir. 2013), citing KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 415-22 (2007) . Among other things, we are admonished to take account of the background knowledge possessed by, and the inferences and creative steps that would be taken by, a person of ordinary skill in the art. Id. The Examiner’s approach to this case, including the findings of fact and conclusions of law set forth in the Answer reflect the appropriate expansive and flexible approach to obviousness that our supervising Court directs us to employ. We sustain the Examiner’s unpatentability rejection of claim 6. Claims 9, 11 and 12 Claims 9, 11 and 12 depend, directly or indirectly, from claim 6. Clms. App’x. Appellants cite only to the arguments presented for the Appeal 2011-012197 Application 11/403,216 - 6 - patentability of claim 6 as conferring patentability on claims 9 and 12. App. Br. 20. Appellant does not argue for the separate patentability of claim 11. For the reasons discussed with respect to claim 6, we are not apprised of error in the Examiner’s rejection of claims 9, 11 and 12. Accordingly, the rejections of claims 9, 11 and 12 are sustained. Unpatentability of Claims 7, 8, 10, 13 and 14 Appellant cites only to the arguments presented for the patentability of claim 6 as conferring patentability on claims 7, 8, 10, 13 and 14, which stand rejected as being unpatentable over Allen and Schmidt in combination with additional references. App. Br. 21-23. For the reasons discussed with respect to claim 6, we are not apprised of error in the Examiner’s rejection of claims 7, 8, 10, 13 and 14. Accordingly, the rejections of claims 7, 8, 10, 13 and 14 are sustained. DECISION The decision of the Examiner to reject claims 6-14 is AFFIRMED. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED mls