Ex Parte Schumacher

Patent Trial and Appeal BoardMar 30, 2016

12673894 (P.T.A.B. Mar. 30, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 12/673,894 07/15/2011 Hartmut Schumacher 26646 7590 04/01/2016 KENYON & KENYON LLP ONE BROADWAY NEW YORK, NY 10004 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. 1019115948 2224 EXAMINER AMRANY,ADI ART UNIT PAPER NUMBER 2836 NOTIFICATION DATE DELIVERY MODE 04/01/2016 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): uspto@kenyon.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte HAR TMUT SCHUMACHER Appeal2014-003285 Application 12/673,8941 Technology Center 2800 Before ADRIENE LEPIANE HANLON, CATHERINE Q. TIMM, and JAMES C. HOUSEL, Administrative Patent Judges. PERCURIAM. DECISION ON APPEAL A. STATEMENT OF THE CASE The Appellant filed an appeal under 35 U.S.C. Â§ 134(a) from the Examiner's decision finally rejecting claims 11, 17, 19, 21, and 22 under 35 U.S.C. Â§ 102(b) as being anticipated by Nitschke2 and rejecting claims 12-16, 18, and 20 under 35 U.S.C. Â§ 103(a) as being unpatentable over Nitschke. We have jurisdiction under 35 U.S.C. Â§ 6(b). 3 1 According to Appellant, the real party in interest is Robert Bosch GmbH. App. Br. 1. 2 Nitschke et al., US 6,566,765 Bl, issued May 20, 2003 (hereinafter "Nitschke"). 3 Our decision refers to the Final Office Action mailed May 13, 2013 (Final Act.), Appellant's Appeal Brief (App. Br.) filed Aug. 20, 2013, the Examiner's Answer Appeal2014-003285 Application 12/673,894 We AFFIRM-IN-PART. The claims on appeal are directed to control devices and methods for triggering a passenger protection arrangement in a vehicle (see e.g., claims 11 and 19). Appellant discloses the control devices and methods ensure communication and triggering of a passenger protection arrangement in an autarchy situation, such as when a vehicle battery is disconnected in an accident. Spec. p. 1, 1. 23-p. 2, 1. 4. Appellant discloses a switching threshold is derived directly from a vehicle battery voltage in a non-autarchy situation and derived from a supply voltage in the autarchy situation. Spec. p. 2, 11. 7-12. Appellant discloses the control devices and methods provide emergency capabilities for control devices with robust signal detection, even under difficult conditions, and without feedback. Spec. p. 2, 11. 14-- 19. Independent claim 11 is illustrative and is reproduced below from the Claims Appendix of the Appeal Brief. The limitations at issue are italicized. 11. A control device for triggering a passenger protection arrangement in a vehicle, comprising: an interface receiving at least one signal derived from both a transmitted signal and a vehicle battery voltage; a threshold deriving circuit that selects as a switching threshold a voltage that is on whichever of a first circuit branch and a second circuit branch provides a greater voltage, the first circuit branch providing a supply voltage and the second circuit branch providing the battery voltage, such that, when the battery voltage is unavailable, the switching threshold is formed exclusively by the supply voltage; and a trigger circuit, which triggers the passenger protection arrangement as a function of a comparison between the at least one signal and the switching threshold. (Ans.) mailed Nov. 5, 2013, and Appellant's Reply Brief (Reply Br.) filed Jan. 6, 2014. 2 Appeal2014-003285 Application 12/673,894 App. Br., Claims Appendix 1. B. DISCUSSION 1. Rejection of claims 11, 17, 19, 21, and 22 under 35 U.S.C. Â§ 102 over Nitschke The Examiner finds Nitschke discloses a control device for triggering a passenger protection arrangement comprising an interface, a threshold deriving circuit, and a trigger circuit. Final Act. 2-3. The Examiner finds the threshold deriving circuit selects, as a switching threshold, the greater of a supply voltage on a first branch or a battery voltage such that, when the battery voltage is unavailable, the switching threshold is formed exclusively by the supply voltage. Final Act. 2-3. Appellant argues the threshold deriving circuit of Nitschke does not select whichever of a supply voltage UBN and a battery voltage UBA is greater as a switching threshold because the threshold deriving circuit does not compare the supply voltage UBN to the battery voltage UBA. App. Br. 3. The Appellant's argument is not persuasive of reversible error. The Examiner concludes that claim 11 does not recite a comparator or other circuitry to compare the supply voltage UBN and the battery voltage UBA, as described in Appellant's Specification. Ans. 4 and 6. The Examiner's interpretation of claim 11 is correct because claim 11 requires the selection of the greater of voltage without explicitly reciting how the selection is made. Nor does claim 11 recite which of the supply voltage and battery voltage is greater. As stated in In re Hiniker Co., 150 F.3d 1362, 1369 (Fed.Cir.1998), "the name of the game is the claim." Appellant's argument appears to be directed to features not recited in claim 11. "Though understanding the claim language may be aided by 3 Appeal2014-003285 Application 12/673,894 explanations contained in the written description, it is important not to import into a claim limitations that are not part of the claim." Superguide Corp. v. DirecTV Enterprises, Inc., 358 F.3d 870, 875 (Fed. Cir. 2004). Moreover, the disclosure of Nitschke supports the Examiner's finding that Nitschke selects the greater of a supply voltage and a battery voltage, within the broadest reasonable interpretation of claim 11. There is no dispute that the system of Nitschke includes a test circuit PS to determine whether the supply voltage UBN is normal and the system switches to the battery voltage UBA when the supply voltage UBN is not normal. App. Br. 3 and Ans. 3--4. The Examiner finds Nitschke selects the greater voltage when the supply voltage UBN is used in the system of Nitschke because the supply voltage UBN is greater than the battery voltage UBA. Ans. 6. The disclosure of Nitschke supports this finding because Nitschke discloses using the supply voltage UBN when the test circuit PS determines the supply voltage UBN is normal and because Nitschke discloses the supply voltage UBN can have a value of 27 volts and the battery voltage UBA can have a value of 12 volts. Nitschke col. 4, 1. 59 to col. 5, 1. 1 and col. 5, 11. 20-21. Thus, Nitschke discloses an embodiment in which the greater voltage is selected. In addition, the Examiner finds Nitschke discloses the supply voltage UBN can fail, such as via a short circuit that would drop the supply voltage UBN to 0 volts. Ans. 6. Nitschke discloses a circuit defect can be, for example, a failure or defective operation of a power supply for a central control unit, and therefore supports the Examiner's finding. Nitschke col. 1, 11. 51-59 and col. 4, 11. 33-38. In this situation of a supply voltage failure, the circuit of Nitschke would find the supply voltage UBN to be abnormal and would switch to the battery voltage UBA. The result of switching from the failed supply voltage UBN, which has a value of 0 volts, to the battery voltage UBA, which has a value of 12 volts, also results in the 4 Appeal2014-003285 Application 12/673,894 selection of the greater voltage, as recited in claim 11. This demonstrates Nitschke discloses another embodiment in which the greater voltage is selected. Appellant argues the Examiner's cited example of a failed supply voltage, which would have a value of 0 volts for the supply voltage, is insufficient to anticipate claim 11 because this situation would not always occur and Nitschke would not always select the greater voltage. App. Br. 3--4 and Reply Br. 2. Significantly, "the description of a single embodiment of broadly described subject matter constitutes a description of the invention for anticipation purposes." In re Lukach, 442 F.2d 967, 970 (CCPA 1971). Thus, Nitschke' s single embodiment falling within the scope of claim 11 (i.e., the example ofNitschke's system selecting the supply voltage when it is normal or the example ofNitschke's system selecting the battery voltage when the supply voltage has failed) is sufficient to establish anticipation. Appellant further asserts the system of Nitschke does not necessarily select the greater voltage because Nitschke detects whether a supply voltage is normal, not whether a voltage is greater than another. Reply Br. 2-3. This argument is not persuasive because, as discussed above, claim 11 recites the selection of a greater voltage without specifying how the selection is to be made, without reciting which voltage is greater, or without reciting the supply voltage and battery voltage are compared to one another. In addition, Appellant argues Nitschke does not disclose that "when the battery voltage is unavailable, the switching threshold is formed exclusively by the supply voltage." App. Br. 4 and Reply Br. 4. In particular, Appellant contends Nitschke does not select the supply voltage UBN based upon the unavailability of the battery voltage UBA but instead determines whether the supply voltage UBN is normal and selects the battery voltage UBA if the supply voltage UBN is not 5 Appeal2014-003285 Application 12/673,894 normal. App. Br. 4. Appellant also asserts the Examiner has not given the limitations of claim 11 proper patentable weight. Reply Br. 4. These arguments do not persuade us that the Examiner reversibly erred. The Examiner finds that for all states of the battery voltage UBA of Nitschke (i.e., whether the battery voltage UBA is available or not available), the system of Nitschke would select the supply voltage when the supply voltage is found to be normal. Ans. 7. As discussed above, Nitschke discloses a system including a test circuit PS to determine whether the supply voltage UBN is normal and discloses switching to the battery voltage UBA when the supply voltage UBN is not normal. Nitschke col. 4, 1. 59 to col. 5, 1. 14. If the supply voltage UBN of Nitschke is normal, the system of Nitschke will use the supply voltage UBN as a switching threshold regardless of whether the battery voltage UBA is available or not. Therefore, the disclosure of Nitschke supports the Examiner's findings that Nitschke anticipates claim 11. Moreover, claim 11 does not recite determining whether the battery voltage is unavailable before switching to the supply voltage, as the Examiner concludes. Ans. 7. For the reasons discussed above and those discussed in the Examiner's Answer, the Â§ 102 rejection of claim 11 is sustained. Claims 17, 19, 21, and 22 have not been argued separately in the Appeal Brief and therefore fall with claim 11.4 37 C.F.R. Â§ 41.37(c)(iv). 4 Appellant presents new arguments for claims 21 and 22 in Appellant's Reply Brief. Reply Br. 5. Appellant has not shown good cause why these arguments could not have been presented in the Appeal Brief. Therefore, we will not consider the separate arguments for claims 21 and 21 newly raised in the Reply Brief. 37 C.F.R. Â§ 41.41(b)(2). 6 Appeal2014-003285 Application 12/673,894 2. Rejection of claim 14 under 35 U.S.C. Â§ 103 over Nitschke Claim 14 depends from claim 11 and recites, inter alia, the supply voltage is connected to a first input of a first comparator via the first circuit branch, which includes at least one first resistor and at least one first diode; and the first and second branches are arranged so that when one branch has a higher voltage than the other branch, the higher voltage branch operates to block the lower voltage branch. The Examiner finds Nitschke discloses the first circuit branch, including the at least one first resistor, but does not expressly disclose the at least one first diode of the first circuit branch. Final Act. 5. The Examiner concludes it would have been obvious to include a diode in the first circuit branch of Nitschke because "[t]he random and arbitrary addition of circuit components is within the level of ordinary skill in the art." Final Act. 5. The Examiner determines the addition of the diode to Nitschke would have been obvious because claim 14 does not define where the diode is located or what function it performs. Final Act. 5 and Ans. 7-8. Appellant contends Nitschke does not disclose first and second branches arranged so that a higher voltage branch operates to block the lower voltage branch, as recited in claim 14. App. Br. 5. Appellant disagrees that claim 14 does not define where the first diode is located because claim 14 recites the diode is located in the first branch. App. Br. 5. Moreover, Appellant contends the Specification describes how forward biasing of diodes in the branches ensures that the higher voltage blocks the lower voltage. App. Br. 6. "[T]he examiner bears the initial burden, on review of the prior art or on any other ground, of presenting a prim a facie case of unpatentability. If that burden is met, the burden of coming forward with evidence or argument shifts to the applicant." In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). Appellant's 7 Appeal2014-003285 Application 12/673,894 arguments demonstrate claim 14 recites sufficient structure for the first diode, including its location in the first branch, and Appellant's Specification discloses the function of blocking a lower voltage. Thus, the Examiner's reasons for modifying Nitschke are not supported by the record. The Examiner has failed to meet the initial burden of setting forth a prima facie case of obviousness. Therefore, the Â§ 103 rejection of claim 14 over Nitschke is not sustained. 3. Rejection of claim 18 under 35 U.S.C. Â§ 103 over Nitschke Claim 18 depends from claim 17, which depends from claim 11. Claim 1 7 recites that the interface of claim 11 includes a pull-up circuit for transmitting data. Claim 18 further recites "wherein the pull-up circuit conducts the supply voltage to a transmission line via at least one second resistor and at least one second diode." The Examiner finds Nitschke discloses a pull-up circuit but does not expressly disclose the pull-up circuit includes a diode. Final Act. 6. The Examiner finds Nitschke instead discloses a switch to prevent the possibility of reverse current flow. Final Act. 6. The Examiner concludes it would have been obvious to include a diode in the pull-up circuit of Nitschke because a switch and a diode are art recognized equivalents for the purpose of electrically disconnecting a failed power source. Final act. 6-7. Appellant asserts the Examiner has taken Official Notice of switches and diodes being art recognized equivalents for the purpose of electrically disconnecting a failed power source. App. Br. 6. Appellant argues the recitations of claim 18 include specific details of the use of a diode, which are not commonly known, and Appellant is unaware of any prior art reference disclosing a diode used in the manner of claim 18. App. Br. 6. Further, Appellant contends switches and 8 Appeal2014-003285 Application 12/673,894 diodes are not equivalents in all situations and asserts the Examiner should explain why the Official Notice was not raised earlier. App. Br. 6-7. The Examiner responds to Appellant's assertion of Official Notice by finding the diode arrangement recited by Appellant is well known in the art, citing several references submitted in an Information Disclosure Statement. Ans. 9-10. The Examiner explains the Official Notice was taken after Appellant amended claim 11, which resulted in the new rejection over Nitschke in the Final Office Action. Ans. 11. In addition, the Examiner finds that a pull-up circuit with a diode and a pull-up circuit with a switch function in the same way to disconnect an input voltage when the input voltage fails or drops. Ans. 10. In the Reply Brief, Appellant did not respond to the Examiner's findings. Therefore, Appellant has failed to establish that the Examiner's findings are erroneous. Claims 12, 13, 15, 16, and 20 have not been argued separately. 5 For the reasons discussed above and those discussed in the Examiner's Answer, theÂ§ 103 rejection of claims 12, 13, 15, 16, 18, and 20 over Nitschke is sustained. C. DECISION On the record before us, we: A. affirm the Examiner's decision to reject claims 11, 17, 19, 21, and 22 under 35 U.S.C. Â§ 102(b) as anticipated by Nitschke; B. reverse the Examiner's decision to reject claim 14 under 35 U.S.C. Â§ 103(a) as unpatentable over Nitschke; and C. affirm the Examiner's decision to reject claims 12, 13, 15, 16, 18, and 20 under 35 U.S.C. Â§ 103(a) as unpatentable over Nitschke. 5 App. Br. 5-7. 9 Appeal2014-003285 Application 12/673,894 No time period for taking any subsequent action in connection with this appeal may be extended under 3 7 C.F .R. Â§ 1.13 6( a)( 1 ). AFFIRMED-IN-PART 10