Ex Parte Yajima

Patent Trial and Appeal BoardDec 20, 2016

13823924 (P.T.A.B. Dec. 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. 13/823,924 03/15/2013 Satoshi Yajima 030413-3025-US00 4597 34044 7590 12/22/2016 MICHAEL BEST & FRIEDRICH LLP (Bosch) 100 EAST WISCONSIN AVENUE MILWAUKEE, WI 53202 EXAMINER FRISBY, KEITH J ART UNIT PAPER NUMBER 3616 NOTIFICATION DATE DELIVERY MODE 12/22/2016 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): mkeipdocket@michaelbest.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte SATOSHI Y A JIM A Appeal 2015-000842 Application 13/823,924 Technology Center 3600 Before CHARLES N. GREENHUT, MICHAEL L. HOELTER, and PAUL J. KORNICZKY, Administrative Patent Judges. HOELTER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE This is a decision on appeal, under 35 U.S.C. § 134(a), from a final rejection of claims 1—6. Br. 6. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. Appeal 2015-000842 Application 13/823,924 THE CLAIMED SUBJECT MATTER The disclosed subject matter “relates to a drive control method of an occupant protection control apparatus for drive-controlling an occupant protection apparatus, such as what is called an airbag apparatus.” Spec. 11. Claims 1 and 3 are independent claims. Claim 1 is illustrative of the claims on appeal and is reproduced below. 1. A drive control method of an occupant protection control apparatus for controlling the operation of a two-stage ignition- type occupant protection apparatus having two ignition means, wherein, when a first ignition means of the occupant protection apparatus is in a failed state at the time when the first ignition means is normally scheduled to be ignited, a second ignition means in place of the first ignition means is ignited at the time when the first ignition means is normally scheduled to be ignited, and the first ignition means is ignited at a second time. THE REJECTION ON APPEAL Claims 1—6 are rejected under 35U.S.C. § 112, second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which Appellant regards as the invention. ANALYSIS Appellant argues claims 1 and 2 separately. Br. 6—7. Regarding claims 3 and 4, Appellant relies on “limitations similar to claims 1 and 2, respectively” and also, “the reasons set forth above with respect to claims 1 and 2.” Br. 8. Regarding claims 5 and 6, Appellant states, “for the reasons set forth above with respect to claims 1 and 3, claims 5 and 6 are also allowable.” Br. 8. In view of Appellant’s positions, we address claims 1 2 Appeal 2015-000842 Application 13/823,924 and 2, with claims 3—6 standing or falling therewith. See 37 C.F.R. 41.37(c)(l)(iv). Regarding claim 1, the Examiner states that this claim is indefinite because claim 1 does “not make sense.” Final Act. 2. The Examiner’s position is that claim 1 states that the first ignition means “is in a failed state at the time when” it is “scheduled to be ignited” but that “the first ignition means is ignited at a second time.” The Examiner’s quandary is that “[i]f a first ignition means is in a failed state such that it cannot be expected to operate at a first time,” then “it cannot be positively expected to operate without fail at a second time.” Final Act. 2. The Examiner’s logic is impeccable, but for one flaw pointed out by Appellant, i.e., “[i]gnited does not mean operate.” Br. 6. Appellant states that “Figs. 3—5 show that igniting is the application of a voltage pulse to the ignition means. This voltage pulse takes place whether or not the ignition means actually causes an explosion.”1 * 3Br. 6. In other words, “[c]laim 1 does not recite that the first ignition means will operate, only that an attempt at operating the first ignition means is made by igniting the first ignition means.” Br. 6. Appellant likens this to a dud firecracker, i.e., “the fuse of the firecracker can still be ignited.” Br. 6. Another example provided by 1 Appellant’s written description also discusses the separate actions of ignition and explosion/operation. See Spec. 24 (an airbag “need[s] to be caused to explode”), 29 (“the driver seat will be simultaneously ignited to cause the driver airbag apparatus 3 to explode), 32 (“the first squib 3a for driver seat will be ignited to bring the driver airbag apparatus 3 into a first- stage exploded state”); see also H 36 (for a discussion of when “first squib 3a for driver seat has been diagnosed to be in a failed state” and does not explode when expected), 38 (“the first squib 3a for driver seat is ignited again in spite of the determination result that the first squib 3a for driver seat has been diagnosed to be in failed state”)(emphasis added). 3 Appeal 2015-000842 Application 13/823,924 Appellant is a bumed-out light bulb, i.e., “[y]ou can still turn on the light switch (ignite the light), the light just will not glow.” Br. 6. Accordingly, in view of the understanding that “igniting is the application of a voltage pulse to the ignition means” (Br. 6), then the use of “ignited” in claim 1 only means application of a voltage pulse, and not that such application successfully results in a subsequent explosion. Accordingly, the limitation in claim 1 regarding “the first ignition means is ignited at a second time,” which caused Examiner confusion, simply means that a voltage pulse was applied at a second time, not that the first ignition means was successfully exploded at this second time. Hence, the Examiner’s analysis equating ignition with successful operation (see Ans. 2— 3) is not a correct interpretation of claim 1 in light of the above understanding of the claim term “ignited.” As such, the above rationale relied on by the Examiner is not indicative that claim 1 is indefinite. Regarding claim 2, the Examiner initially addresses the claim language “in place of’ found in parent claim 1 (and also independent claim 3). See Ans. 4. The claim 1 limitation in question reads, “a second ignition means in place of the first ignition means is ignited.” The Examiner states that this “in place of’ language means “that the first ignition means is removed from its place.” Ans. 4. Appellant does not dispute that this claim phrase means removal and replacement. It is this understanding of the claim phrase “in place of’ in parent claim 1 that fuels the Examiner’s finding of a contradiction between claims 1 and 2 (and also between claims 3 and 4). Final Act. 2—3; Ans. 4. The Examiner finds that this “in place of’ language results in “the second claimed time at which the first ignition means is allegedly ignited [being] 4 Appeal 2015-000842 Application 13/823,924 different from the first claimed time.” Ans. 4. In other words, “the second ignition time is a different time than the first ignition time.” Ans. 4. Yet, this is contradicted by the language of dependent claim 2 (and dependent claim 4) which recites that the two times are the same.2 Final Act. 2—3; Ans. 4. Accordingly, lacking any clarifying explanation or analysis by Appellant, we are not persuaded the Examiner’s confusion regarding claims 2 and 4 is unwarranted. We sustain the Examiner’s rejection of claims 2 and 4 as being indefinite. DECISION The Examiner’s rejection of claims 1,3,5, and 6 is reversed. The Examiner’s rejection of claims 2 and 4 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)(l)(iv). AFFIRMED-IN-PART 2 Claim 2 recites, “wherein, the second time is when the first ignition means is normally scheduled to be ignited.” 5