Ex Parte Thomas et al

Patent Trial and Appeal BoardNov 30, 2012

11620199 (P.T.A.B. Nov. 30, 2012)

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. 11/620,199 01/05/2007 Freeman Thomas 81154556 8852 28395 7590 11/30/2012 BROOKS KUSHMAN P.C./FGTL 1000 TOWN CENTER 22ND FLOOR SOUTHFIELD, MI 48075-1238 EXAMINER COLEMAN, KEITH A ART UNIT PAPER NUMBER 3783 MAIL DATE DELIVERY MODE 11/30/2012 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 FREEMAN THOMAS, MARK GORMAN, and SVEN ETZELSBERGER ____________________ Appeal 2010-010081 Application 11/620,199 Technology Center 3700 ____________________ Before: JENNIFER D. BAHR, HYUN J. JUNG, and JEREMY M. PLENZLER, Administrative Patent Judges. JUNG, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-010081 Application 11/620,199 2 STATEMENT OF THE CASE Freeman Thomas et al. (Appellants) appeal under 35 U.S.C. § 134 from an Examiner’s decision to reject claims 1-8. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. THE CLAIMED SUBJECT MATTER The claims are directed to a throttle valve display system and a method for indicating a throttle valve position. App. Br., Claims App’x. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A throttle valve display system for an automotive vehicle including a throttle valve having a throttle valve position, a gas pedal having a gas pedal position, and an exterior, the gas pedal position being related to the throttle valve position, the system comprising: a sensor arrangement configured to sense the gas pedal position; a controller in communication with the sensor arrangement; and a throttle valve display device for indicating the throttle valve position, the device being mounted to the exterior of the vehicle and including a flapper panel operatively connected with the controller, the controller being configured to move the flapper panel to a predetermined position based on the gas pedal position thereby indicating the throttle valve position. Appeal 2010-010081 Application 11/620,199 3 THE REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Kitchin Manaka Cuddihee US 3,757,751 US 4,919,096 US 6,463,901 B1 Sep. 11, 1973 Apr. 24, 1990 Oct. 15, 2002 Fagala US 2005/0045139 A1 Mar. 3, 2005 THE REJECTIONS Appellants seek our review of the following rejections: Claims 1-6 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Kitchin, Manaka, and Cuddihee. Ans. 4-9. Claims 7 and 8 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Manaka and Fagala. Id. at 9-11. ANALYSIS Obviousness based on Kitchin, Manaka, and Cuddihee The Examiner finds that “Kitchin et al. discloses a throttle valve display system (i.e. ram air intake horn 16) for an automotive vehicle including a throttle valve (36) . . . and including a flapper panel (i.e. the valve mechanisms 36) . . .” Ans. 4. The Examiner relies on Manaka and Cuddihee as disclosing other limitations of claim 1. Id. at 5-6. Appellants argue that the Examiner impermissibly relies on the horizontal louvers 36 of Kitchin as disclosing both the throttle valve and flapper panel of claim 1. App. Br. 3-4; see also Reply Br. 2. It is not entirely clear which element(s) the Examiner considers to satisfy the throttle valve and the flapper panel, respectively, of claim 1. The Appeal 2010-010081 Application 11/620,199 4 Examiner cites the same reference numeral (i.e., “36”) of Kitchin to identify both the throttle valve and the flapper panel. Ans. 4. If the Examiner relies on louvers 36 as disclosing both the throttle valve and the flapper panel, then we agree with Appellants that, consistent with the principle that all limitations in a claim must be considered to be meaningful, it is improper to rely on the same structure in Kitchin as being responsive to two different elements in claim 1. See also Ans. 5 (stating that Manaka discloses a “controller (3) being configured to move the flapper panel (2) to a predetermined position based on the gas pedal position (via 11) thereby indicating the throttle valve position (2). . .”). The Examiner’s comments in the last sentence on page 11 of the Answer, and from the last sentence on page 13 through the first paragraph on page 14 of the Answer suggest the Examiner may be considering one set of louvers 36 of Kitchin to be the throttle valve and the second set of louvers 36 to be the flapper panel. See annotated fig. 2 at Ans. 14. However, the Examiner’s characterization of Appellants’ valve display device as requiring nothing more than “another throttle valve” (Ans. 11) seemingly ignores the term “display.” Kitchin’s louvers 36 are enclosed within housing 18 having opposite side walls 20, top and bottom walls 22 and 24 and ends 26 and 28 covered by wire screens 34. Kitchin gives no indication that either set of louvers 36 is “visible to the public” so as to reasonably function as a throttle valve display device as called for in claim 1. See Ans. 14 (asserting that “all three references clearly show a throttle valve display system since each component is clearly visible to the public”). Appeal 2010-010081 Application 11/620,199 5 Accordingly, on the record before us, we cannot sustain the rejection of claim 1 or its dependent claims 2-6 under 35 U.S.C. § 103(a) as unpatentable over Kitchin, Manaka, and Cuddihee. Obviousness based on Manaka and Fagala The Examiner concludes that Manaka and Fagala render obvious the subject matter of independent claims 7 and 8. Ans. 9-11 and 14-16. Appellants contend that the Examiner relies on the butterfly valves 29 of Fagala as disclosing both the throttle valve and flapper panel of claims 7 and 8. App. Br. 5. We do not agree because, while the Examiner finds that the butterfly valves 29 of Fagala corresponds to the flapper panel, the Examiner also finds that Manaka discloses a throttle valve (throttle valve 2). Ans. 9 (stating “Manaka et al. discloses all the limitations of the claimed subject matter including a . . . throttle valve (2) . . . “). Thus, we sustain the rejection of independent claim 7 under 35 U.S.C § 103(a) as unpatentable over Manaka and Fagala. Claim 8 recites “a throttle valve display device . . . fluidly separated from the throttle valve,” and Appellants argue that the Examiner’s proposed combination of Manaka and Fagala fails to disclose a throttle valve display device fluidly separated from a throttle valve. App. Br. 5 and Reply Br. 2. We agree as the Examiner provides no findings regarding a throttle valve display device that is fluidly separated from a throttle valve. See Ans. 9-11 and 14-16. Therefore, on the record before us, we cannot sustain the rejection of independent claim 8 under 35 U.S.C. § 103(a) as unpatentable over Manaka and Fagala. Appeal 2010-010081 Application 11/620,199 6 DECISION The Examiner’s rejection of claims 1-6 under 35 U.S.C. § 103(a) as unpatentable over Kitchin, Manaka, and Cuddihee is reversed. The Examiner’s rejection of claim 7 under 35 U.S.C. § 103(a) as unpatentable over Manaka and Fagala is affirmed. The Examiner’s rejection of claim 8 under 35 U.S.C. § 103(a) as unpatentable over Manaka and Fagala is reversed. 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) (2011). AFFIRMED-IN-PART mls