Ex Parte Tumavitch et al

Patent Trial and Appeal BoardApr 20, 2016

13348758 (P.T.A.B. Apr. 20, 2016)

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. 13/348,758 01/12/2012 Jeffrey J. Tumavitch 83163840 8005 28866 7590 04/20/2016 MACMILLAN, SOBANSKI & TODD, LLC - FORD ONE MARITIME PLAZA - FIFTH FLOOR 720 WATER STREET TOLEDO, OH 43604 EXAMINER ANTONUCCI, ANNE MARIE ART UNIT PAPER NUMBER 3667 MAIL DATE DELIVERY MODE 04/20/2016 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 JEFFREY J. TUMAVITCH, SHAWN A. HOLLAND, BRADLEY D. RIEDLE, and WILLIAM L. MURRAY ____________ Appeal 2014-0019961 Application 13/348,7582 Technology Center 3600 ____________ Before PHILIP J. HOFFMANN, BRADLEY B. BAYAT, and AMEE A. SHAH, Administrative Patent Judges. SHAH, Administrative Patent Judge. DECISION ON APPEAL The Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final decision rejecting claims 1–5. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 Throughout this opinion, we refer to the Appeal Brief (“Appeal Br.,” filed Aug. 15, 2013), the Examiner’s Answer (“Ans.,” mailed Oct. 2, 2013), the Reply Brief (“Reply Br.,” filed Dec. 2, 2013), the Final Action (“Final Act.,” mailed Mar. 11, 2013), and the Specification (“Spec.,” filed Jan. 12, 2012). 2 According to the Appellants, the real party in interest is Ford Global Technologies LLC, a subsidiary of Ford Motor Company. Appeal Br. 1. Appeal 2014-001996 Application 13/348,758 2 STATEMENT OF THE CASE The Appellants’ invention “relates to an automatically shifted layshaft transmission, and more particularly to a method for making adjustments to a synchronizer actuation mechanism in such a transmission.” Spec. ¶ 1. Claim 1 is the only independent claim on appeal, is illustrative of the subject matter on appeal, and is reproduced below: 1. A method of adapting transmission controls to locate synchronizer touch points in an automated layshaft transmission comprising the steps of: (a) actuating a motor to move a shift drum along a layshaft at an essentially constant speed; (b) measuring a feedback current as the motor moves the shift drum; (c) detecting a first spike in feedback current adjacent to a second spike in feedback current for a gear; (d) determining a shift drum angle for the first spike; and (e) adjusting a transmission controller to set a synchronizer touch point at a shift drum angle adjacent to the first feedback current spike for the gear. Appeal Br. 11 (Claims App.). REJECTIONS Claims 1 and 2 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Kouno (US 2005/0230216 A1, pub. Oct. 20, 2005). Final Act. 4; Ans. 2. Claims 3–5 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Kouno and Berger (US 2003/0114975 A1, pub. June 19, 2003). Final Act. 5; Ans. 2. Appeal 2014-001996 Application 13/348,758 3 ANALYSIS The Appellants contend the Examiner’s rejection of claim 1 is in error because Kouno does not teach or suggest any of the elements of the method of claim 1. See Appeal Br. 5. In particular, the Appellants argue that Kouno does not teach the motor moving at an essentially constant speed or the motor being actuated to move the shift drum along the layshaft at an essentially constant speed, as recited by limitation (a) of claim 1. Appeal Br. 5–6; Reply Br. 2–3. After careful review of the Examiner’s findings and reasoning (see Final Act. 2–4; Ans. 2–3), we find the Examiner does not adequately show by a preponderance of the evidence that Kouno discloses limitation (a). The Examiner finds that Kouno teaches that “a select motor 12 actuates a shift motor (shift actuator) 13” (Final Act. 4), and that “the motor/shift motor is controlled based on the conditions of an accelerator pedal - thus if the accelerator pedal is kept at a constant position, the motor will be controlled accordingly. ([Kouno] ¶[0040]-[0041])” (Final Act. 2; see also Ans. 3). The Examiner further finds that the limitation does not require “that every time in which the vehicle is moving the shift drum is moved along the layshaft at an essentially constant speed, or that any specific factor is considered in determining the movement of the shift drum.” Ans. 2–3. Kouno at paragraph 41 discloses: The controller 1 controls a gearshift operation of the transmission 80 by driving a select motor 12, a shift motor 13 (corresponding to a shift actuator of the present invention), and a clutch actuator 16 according to conditions of an accelerator pedal 95, a fuel supply control unit 96, a change lever 97, a clutch pedal 98, and a brake pedal 99. Appeal 2014-001996 Application 13/348,758 4 It is not clear whether the Examiner finds that the motor 12 actuates a shift motor 13 to move a shift drum along a layshaft at a constant speed, or that the accelerator pedal 95 actuates a motor 12 to move a shift drum 13 along a layshaft. Regardless, neither of these findings is supported by a preponderance of the evidence. We agree with the Appellants that there is nothing in the cited portions of Kouno that discloses or suggests that a motor moves a shift drum along a layshaft at an essentially constant speed. The Examiner’s finding that when the accelerator pedal is kept at a constant position, the motor will be controlled accordingly (Final Act. 2; Ans. 2–3) also is not supported by a preponderance of the evidence, and does not explain how Kouno discloses the claim limitation of a motor moving a shift drum at a constant speed. See Appeal Br. 6; Reply Br. 3. Thus, we are persuaded the Examiner’s rejection of claim 1 is in error, and, therefore, we do not sustain the Examiner’s rejection of independent claim 1 and dependent claim 2. The Examiner’s rejection of claims 3–5 rely on the same findings discussed above with respect to claim 1 (see Final Act. 6), and, thus, we do not sustain the rejection of these claims for the same reasons we do not sustain the rejection of claim 1. DECISION The Examiner’s rejections of claims 1 and 2 under 35 U.S.C. § 102(b) and of claims 3–5 under 35 U.S.C. § 103(a) are reversed. REVERSED