Ex Parte Yao et al

Patent Trial and Appeal BoardMar 29, 2018

14187412 (P.T.A.B. Mar. 29, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/187,412 02/24/2014 113600 7590 04/02/2018 Brooks Kushman P.C. I Meritor Twenty Second Floor 1000 Town Center Southfield, MI 48075 FIRST NAMED INVENTOR Yixin Yao 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. MERIT 130037 PUSP 1039 EXAMINER ANW ARI, MACEEH ART UNIT PAPER NUMBER 3663 NOTIFICATION DATE DELIVERY MODE 04/02/2018 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): docketing@brookskushman.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte YIXIN YAO, JONATHAN L. HONIG, and JOHN ASHLEY PETERSON Appeal2017-006345 Application 14/187,412 Technology Center 3600 Before JOHN C. KERINS, JAMES P. CAL VE, and FREDERICK C. LANEY, Administrative Patent Judges. LANEY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Yixin Yao et al. (Appellants) 1 appeal under 35 U.S.C. Â§ 134(a) from the Examiner's decision (entered Feb. 23, 2016, hereinafter "Non-Final Act.") rejecting claims 1, 3-11, and 13-16 under 35 U.S.C. Â§ 102(a)(l) as anticipated by Brearley (US 5,496,098, iss. Mar. 5, 1996).2 We have jurisdiction over this appeal under 35 U.S.C. Â§ 6(b). We REVERSE. 1 According to Appellant, the real party in interest is ArvinMeritor Technology, LLC. Appeal Br. 3 (filed July 5, 2016). 2 The Examiner has withdrawn the rejection of claims 2, 12, and 17-20 and now object to them as being dependent upon a rejected base claim. Ans. 3. Therefore, the rejection of claims 2, 12, and 17-20 are not a subject of this appeal. Appeal2017-006345 Application 14/187,412 INVENTION Appellants' invention relates to "a brake system that may be provided with a vehicle and a method of control." Spec. i-f 2. Claims 1 and 11 are independent. Claim 1 is illustrative of the claimed invention and is reproduced below with emphasis added to highlight the limitations at the center of this appeal. 1. A vehicle brake system comprising: a friction brake that is disposed proximate a vehicle wheel and that is configured to provide a friction brake torque to slow rotation of the vehicle wheel; a secondary brake that is configured to provide a secondary brake torque that slows rotation of the vehicle wheel by decreasing torque that is provided to rotate the vehicle wheel; and a controller that controls the friction brake and the secondary brake such that the friction brake torque and the secondary brake torque are applied when a brake torque command is less than a threshold brake torque command. Appeal Br. (Claims App. 1 ). ANALYSIS Claims 1 and 3-10 Relying solely on Figure 6 in Brearley to disclose each of the limitations of the vehicle brake system that claim 1 recites, the Examiner finds elements 137 and 138 ("foundation/friction brakes") show the claimed "friction brake," element 129 ("retarder") shows the claimed "secondary brake," and elements 128 ("retarder controller"), 135 ("friction brake controller"), and 136 ("friction brake controller") show the claimed controller. Non-Final Act. 3. Appellants challenge whether the Examiner has properly shown the claimed controller. Appeal Br. 7. Specifically, 2 Appeal2017-006345 Application 14/187,412 Appellants assert the collective controllers identified by the Examiner operate in an opposite manner than claimed because the friction brake torque and the retarder brake torque are only applied when a brake torque command is greater than a threshold brake torque command; whereas, in claim 1, those brake torques are applied when a brake torque command is less than a threshold brake torque command. Id. at 8-9. The Examiner disagrees with Appellants' assertion because "all that is need to read on this claim is a (A) friction brake, (B) a secondary brake and (C) a controller that applies both A & B when a brake torque command is less than a threshold brake torque command." Ans. 5. And, the Examiner finds, Brearley shows, "both B and A are applied when the pedal deflection is beyond the partial point; and the application of B & A continues until the foundation brakes to a point of maximum pressure." Id. (citing Brearley col. 1, 11. 55-59, col. 1, 1. 65---col. 2, 1. 4). The Examiner concludes, as a result, "both B & A are applied prior to the claimed threshold brake torque command" and Brearley discloses a controller that applies B & A when a brake torque command is less than a threshold brake torque command, as claim 1 recites. Id. at 6-7. Appellants argue the Examiner's response demonstrates an erroneous interpretation of the claims. Reply Br. 2. The Examiner errs, Appellants contend, because the Examiner ignores claim 1 recites applying the friction brake torque and the secondary brake torque to the same vehicle wheel. Id. We agree. As Appellants note correctly, prior to the controller limitation, claim 1 recites, a friction brake that is disposed proximate a vehicle wheel and that is configured to provide a friction brake torque to slow rotation of the vehicle wheel; a secondary brake that is configured 3 Appeal2017-006345 Application 14/187,412 to provide a secondary brake torque that slows rotation of the vehicle wheel by decreasing torque that is provided to rotate the vehicle wheel. Id. Thus, when the controller of claim 1 controls the friction brake and the secondary brake, to apply the friction brake torque and the secondary brake torque, it does so for the same vehicle wheel. Brearley, however, only discloses applying the friction brake torque to the front wheels and the secondary brake torque (i.e., retarder torque) to the rear wheels when a brake torque command is less than a threshold brake torque command. See Brearley col. 1, 11. 55-59, col. 1, 1. 65---col. 2, 1. 4, col. 3, 11. 46-53, Fig. 6. As such, although the Examiner is correct Brearley discloses, "both B [a friction brake] & A [a secondary brake] are applied prior to the claimed threshold brake torque command," the Examiner fails to account for the fact that these brakes are being applied to different wheels when a brake torque command is less than a threshold brake torque command. The Examiner does not make any findings to account for this deficiency. As a result, we are persuaded the Examiner has not shown Brearley discloses the controller claim 1 recites. Therefore, we do not sustain the Examiner's anticipation rejection of claim 1, as well as claims 3- 10 depending therefrom. Claims 11 and 13-16 For claims 11 and 13-16, the Examiner simply states that these claims "all list the same elements as those detailed in [claims 1-10]" and are "rejected using the same reasoning and rationale as applied to claims 1-10." Non-Final 5. For claim 11, Appellants assert, "[a] primafacie case has not been established." Appeal Br. 9. In addition, Appellants argue the same 4 Appeal2017-006345 Application 14/187,412 patentability arguments made for claim 1 are equally applicable to claim 11. Id.; see also Reply Br. 3. The problem is that the language of claim 11 and claim 1 is different in significant ways. See Appeal Br. (Claims App. 1, 2). Most notably, claim 11 does not include the specific configuration language recited in claim 1 for the friction brake and the secondary brake relative to a vehicle wheel. Id. (Claims App. 2). And, we have relied on that recited configuration to determine both of these brakes in claim 1 must apply their respective torques to the same vehicle wheel when a brake torque command is less than a threshold brake torque command, which formed the basis of our decision. We, therefore, cannot say the same reasoning and rationale applies to claim 11. Nevertheless, another significant difference with the language of claim 11 is that it recites "a brake blending control strategy," which is not found in claim 1. See id. (Claims App. 1, 2) (emphasis added). The Examiner has the initial burden of presenting a prima facie case that Brearley anticipates claim 11 by notifying Appellants of the reasons Brearley discloses each and every limitation found in claim 11. In re Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011). By summarily rejecting claim 11 because it has the same limitations as claim 1, the Examiner failed to provide a record for why Brearley is regarded as disclosing a method that includes "a brake blending control strategy." As a result, Appellants are correct that the Examiner has not established a prima facie case Brearley anticipates claim 11. Therefore, we do not sustain the Examiner's rejection of claim 11 as well as claims 13-16 depending therefrom. 5 Appeal2017-006345 Application 14/187,412 DECISION The Examiner's rejection of claims 1, 3-11, and 13-16 is reversed. REVERSED 6