FORD GLOBAL TECHNOLOGIES, LLC

Patent Trials and Appeals BoardJan 21, 2021

2019004926 (P.T.A.B. Jan. 21, 2021)

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. 15/073,835 03/18/2016 Aaron Peter Klop 83634859 8517 121691 7590 01/21/2021 Ford Global Technologies, LLC/ King & Schickli, PLLC 800 CORPORATE DRIVE, SUITE 200 Lexington, KY 40503 EXAMINER LYJAK, LORI LYNN ART UNIT PAPER NUMBER 3612 NOTIFICATION DATE DELIVERY MODE 01/21/2021 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@iplaw1.net PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte AARON PETER KLOP and KYLE NESS ____________________ Appeal 2019-004926 Application 15/073,835 Technology Center 3600 ____________________ Before JOHN C. KERINS, GEORGE R. HOSKINS, and ARTHUR M. PESLAK, Administrative Patent Judges. KERINS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 seeks our review under 35 U.S.C. § 134(a) of the Examiner’s Decision rejecting claims 1–14 and 16–21. Claim 15 is canceled. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM IN PART, and designate the affirmances as NEW GROUNDS OF REJECTION under 37 C.F.R. § 41.50(b). 1 The term “Appellant” is used herein to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies Ford Global Technologies, LLC, as the real party in interest. Appeal Br. 3. Appeal 2019-004926 Application 15/073,835 2 CLAIMED SUBJECT MATTER Appellant’s invention relates to an air deflector assembly for a vehicle. Independent claims 1, 11, and 20, are illustrative, and are reproduced below: 1. An air deflector assembly for a vehicle, comprising: a vertically translatable air deflector; and a plurality of linear actuators actuated in series by a driver to vertically translate the air deflector. 11. An airflow control system for a vehicle, comprising: a vertically translatable air deflector; a plurality of actuators actuated in series by a driver to vertically translate the air deflector; and a controller operatively connected to the driver, the controller comprising logic including executable instructions to translate the air deflector to a predetermined position according to a vehicle rate of travel. 20. An air deflector assembly for a vehicle, comprising: a vertically translatable air deflector; and a plurality of linear actuators actuated in series by a reversible hydraulic pump to vertically translate the air deflector. REJECTIONS The Examiner rejects: (i) claims 1, 2, 5, 7–10, and 20 under 35 U.S.C. § 102(a)(1) as being anticipated by Llansola (FR 2626544 A1, published Aug. 4, 1989);2 2 An English-language machine translation of Llansola is of record in the application, and any citation herein is to that machine translation. Appeal 2019-004926 Application 15/073,835 3 (ii) claims 3 and 4 under 35 U.S.C. § 103 as being unpatentable over Llansola in view of Suzuki (US 4,758,037, issued July 19, 1988); (iii) claims 6, 11, 12, 16–19, and 21 under 35 U.S.C. § 103 as being unpatentable over Llansola in view of Suzuki; and (iv) claims 13 and 14 under 35 U.S.C. § 103 as being unpatentable over Llansola in view of Suzuki and Heil (US 2017/0088193 A1, published Mar. 30, 2017). ANALYSIS Claims 1, 2, 5, 7–10, and 20--35 U.S.C. § 102(a)(1)--Llansola Appellant presents separate arguments for independent claims 1 and 20, and for dependent claims 5 and 8. Appeal Br. 10–15. No separate arguments are advanced for claims 2, 7, 9, and 10, so those claims will be grouped with claim 1, and will stand or fall therewith. Claims 1, 2, 7, 9, 10 The Examiner finds that Llansola discloses an air deflector assembly for a vehicle that includes a vertically translatable air deflector 5, a plurality of linear actuators 4 that are actuated in series by a driver, with the driver including reservoir 1, pump 2, and valve 3, to vertically translate the air deflector, and thus discloses all elements of claim 1. Non-Final Act. 3. Appellant retorts that claim 1 is not anticipated by Llansola for several related reasons. Appellant emphasizes that claim 1 recites that a plurality of linear actuators is actuated by a (singular) driver. Appeal Br. 10. Appellant maintains that, because Llansola appears to show only half of an air deflector, the disclosure “strongly suggests that one or perhaps even more additional driver(s) (reservoir 1/pump 2/valve 3) must be provided to ensure smooth and even translation” of what Appellant asserts would be the entire Appeal 2019-004926 Application 15/073,835 4 air deflector, made up of the half illustrated in Figure 1 and an unillustrated half. Id. at 11. Appellant maintains that it would be highly unlikely that a single Llansola actuator system would be disposed in an offset position relative to the complete air deflector, as is shown in Figure 1, in that such an offset could lead to uneven vertical translation of the air deflector. Id. at 10– 11. Appellant asserts that Llansola lacks “an unambiguous and enabling teaching . . . of a single driver actuating a plurality of linear actuators in series to move an air deflector as required by the Appellant’s independent claims.” Id. at 11. The Examiner’s response to this line of argument is that claim 1 recites “‘a driver’ . . .; not a single driver as argued by the Appellant.” Ans. 2.3 In making this rather curt statement in the nature of claim construction, the Examiner apparently takes the position that, even if Llansola included another driver to vertically translate the air deflector, as posited by Appellant, the claim is not limited to a single driver, and is still anticipated by Llansola. We agree that Appellant’s recitation in claim 1 of “a driver” connotes only a singular driver, in the limitation at issue. In this regard, the Examiner’s abbreviated statement contrasting “a driver” with “a single driver,” misses the mark. However, claim 1 recites that the air deflector assembly “comprises” a vertically translatable air deflector, and “a plurality of linear actuators actuated in series by a driver”4 to vertically translate the air deflector. In using the open-ended transitional term “comprising,” claim 3 Reference herein to the Answer, or “Ans.,” is to the Answer dated April 10, 2019. 4 Appellant’s Specification explains that “in series,” is intended to mean “as a unit.” Spec. ¶ 19. Appeal 2019-004926 Application 15/073,835 5 1 does not exclude additional elements, such as a second plurality of linear actuators actuated in series by a second driver that also operate, in concert with the recited plurality of linear actuators, to vertically translate the air deflector. See, e.g., Mars Inc. v. H.J. Heinz Co., 377 F.3d 1369, 1376, (Fed. Cir. 2004) (use of the open-ended transitional phrase “comprising” does not have the effect of excluding additional, unrecited elements). As such, the elements actually appearing in claim 1 are identically disclosed in Llansola, and, to the extent that Llansola would be seen as inherently disclosing or requiring one or more additional drivers to actuate another one or more of a plurality of linear actuators to assist in vertically translating a non-illustrated half of the air deflector shown in Figure 1 thereof, claim 1 on appeal is seen as being sufficiently broad as to encompass such a construction. In making this determination as to the scope of claim 1, we are mindful that the Office is permitted to use the broadest interpretation of a claim that is reasonable in light of the Specification. We recognize that the only embodiment explicitly disclosed employs a single plurality of linear actuators distributed across a considerable portion of the overall lateral extent of the air deflector, and that the linear actuators belonging to this plurality are actuated in series by one reversible pump. Spec. ¶¶ 19, 20, 24, Fig. 2. Very little is said in the Specification, however, about the significance or criticality of using only one plurality of linear actuators and only one pump/driver. See Spec. ¶ 32 (“The system is simple, robust, and efficient, requiring only a single driver 204 for operation.”). The Specification otherwise instructs the person of ordinary skill in the art that “the devices and systems [shown and described] are capable of other, Appeal 2019-004926 Application 15/073,835 6 different embodiments and their several details are capable of modification in various, obvious aspects,” and that “the drawings and descriptions should be regarded as illustrative in nature and not as restrictive.” Spec. ¶ 7. Thus, our interpretation as to the scope of claim 1 is not seen as being inconsistent with the Specification, as it would be understood by persons of ordinary skill in the art. Most importantly, if Appellant affirmatively wished to limit the scope of claim 1 to encompass only a single plurality of linear actuators and a singly driver/pump, the claim language could be modified, for example, by using the term “only a single” to restrict the terms present, and/or to use the closed-end transitional term “consisting of,” rather than “comprising.” Accordingly, we are not persuaded that Llansola fails to anticipate claim 1, so the rejection is sustained. Claims 2, 7, 9, and 10 fall with claim 1. Because the reasoning we employ in arriving at this outcome more clearly explains and/or elaborates on the Examiner’s position relative to the construction and scope of claim 1, we designate our affirmance of the rejection of claims 1, 2, 7, 9, and 10 as anticipated by Llansola as a new ground of rejection under 37 C.F.R. § 41.50(b) Claim 20 Appellant separately argues that independent claim 20 is not anticipated by Llansola. Appeal Br. 12–13. Specifically, Appellant maintains that Llansola does not disclose a reversible hydraulic pump as recited in claim 20. Id. Appellant points out that, although Llansola discloses a reversible hydraulic circuit, the pump employed in that circuit is not disclosed as being reversible. Id. at 12. Appellant explains that the direction of flow of the hydraulic fluid in Llansola is controlled by valve 3, Appeal 2019-004926 Application 15/073,835 7 whereas the direction of hydraulic fluid flow from pump 2 to valve 3 does not change regardless of whether the linear actuators are operating to extend or retract air dam 5. Id. The Examiner’s response is that Appellant’s Specification sets forth that “the driver is a hydraulic pump which may be reversibly operated,” and that the driver in Llansola, which includes reservoir 1, pump 2, and valve 3, is reversible. Ans. 5, citing Spec. ¶ 6. The Examiner’s terse statement otherwise appears to be in agreement with Appellant’s explanation of the operation of the hydraulic circuit in Llansola. The Examiner, though, seems to interpret the claimed hydraulic pump, because it is described as being the driver in the embodiment disclosed in Appellant’s Specification, as being sufficiently broad as to include all components of the Llansola driver. The Examiner’s position is in error. Claim 20 specifically calls for the hydraulic pump itself to be reversible, not that a pump is included in a reversible circuit including other elements or components. That the Specification identifies the pump as the driver in the disclosed embodiment does not permit the Examiner to equate the two terms in comparison to prior art systems. Appellant is correct that the reversibility of flow in the Llansola hydraulic circuit is brought about by moving valve 3 into different positions as a result of a flap controller 7, and not by a reversing of the flow of the pump. See Llansola, Figs. 3, 4 (oil flowing in and out of valve in same directions). The rejection of claim 20 as anticipated by Llansola is not sustained. Claim 5 Claim 5 depends from claim 1, and requires that the assembly include a controller operatively connected to the driver. The Examiner cites to Appeal 2019-004926 Application 15/073,835 8 element 7, referred to in Llansola as a flap, as corresponding to the claimed controller. Non-Final Act. 3. Appellant challenges this finding, asserting that the Examiner employs an unreasonably broad construction of Llansola in support of the rejection. Appeal Br. 14. Appellant argues that, notwithstanding the role of flap 7 in controlling the driver in Llansola, the Specification describes Appellant’s controller as being “any suitable existing or supplied controller or microcontroller. In the depicted embodiment, the controller 604 is the vehicle Body Control Module (BCM), which is already advantageously adapted and adaptable for controlling a variety of vehicle systems.” Id. at 15. Appellant asserts that its recitation of a “controller” in claim 5, when construed in light of this passage of the Specification, is not met by the Llansola air pressure-driven flap 7. Id. The argument is not indicative of Examiner error. In general, limitations appearing in the Specification are not to be read into the claims. In re Van Geuns, 988 F.2d 1181 (Fed. Cir. 1993). Furthermore, although Appellant describes a preferred embodiment of its controller as being some sort of electronic module, the Specification does not explicitly define the controller as being in that form. In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994) (An applicant is permitted to define specific terms used to describe the invention by setting forth a definition for terms with reasonable clarity, deliberateness, and precision.). Also tellingly, claim 6, which depends from claim 5, further limits the controller to one that includes logic with executable instructions to vertically translate the air deflector. Because claim 6 is properly read as being further limiting to claim 5, it follows that claim 5 is not to be limited to a logic-based controller, which is essentially Appeal 2019-004926 Application 15/073,835 9 what Appellant argues is the broadest reasonable interpretation of the limitation. Appellant does not otherwise establish how or why Llansola flap 7 does not fall within a broad, reasonable interpretation of the controller recited in claim 5. The rejection is sustained. Claim 8 Claim 8 depends indirectly from claim 1, and requires a reversible hydraulic pump essentially in the same manner as set forth in independent claim 20. The Examiner and Appellant take the same positions for claim 8 as were advanced for claim 20. For the reasons set forth above in analyzing the rejection of claim 20, we do not sustain the rejection of claim 8 as being anticipated by Llansola. Claims 3 and 4--35 U.S.C. § 103--Llansola/Suzuki The Examiner acknowledges that Llansola does not disclose that its air deflector assembly employs one or more rails that are configured to translate in a sliding manner within one or more vehicle-mounted tracks, as required by claim 3. Non-Final Act. 5. The Examiner invokes Suzuki as disclosing air deflector rails that slide within cooperating vehicle-mounted tracks, and concludes that it would have been obvious to modify the air deflector assembly of Llansola to employ slider rails and tracks as disclosed in Suzuki, so as to keep the air deflector in the same vertical orientation even at high speeds. Id. Appellant argues that, because the Llansola air deflector deployment system employs hydraulic fluid pumped to cylinders to raise and lower the deflector, it is unclear how the Examiner proposes to implement the use of Appeal 2019-004926 Application 15/073,835 10 rails and tracks, which in Suzuki employ a cable-driven system and not a closed hydraulic circuit, without further modification to ensure prevention of leakage of hydraulic fluid. Appeal Br. 16–17. Appellant additionally argues that, were the hydraulic-based cylinders in Llansola replaced with rails and tracks of the type disclosed in Suzuki, it is unclear how the actuator assembly of Llansola, including air flap 7, would continue to be operable to cause reversal of driving fluid by valve 3. Id. at 17. In any event, according to Appellant, the proposed modification amounts to much more than a simple substitution of equivalent elements, and would seemingly require a change in the principle of operation of Llansola. Id. The Examiner’s response lacks clarity in terms of the extent of the proposed modification of Llansola in view of Suzuki. As to the possible issue of incorporating the rails and tracks into a system that employs hydraulics, the Examiner notes that Suzuki “discloses actuator means so the fluid will not leak out.” Ans. 6. The response continues with a more detailed explanation as to how the rails and tracks support a deflector at several lateral positions for movement in synchronism in response to the actuator mechanism. Id. at 6–7. Following this, the Examiner reiterates that it would have been obvious “to make the air deflector of [Llansola] with rails and tracks, as taught by Suzuki.” Id. at 7. Like Appellant, we are also left with an incomplete understanding as to how the Examiner proposes to modify the Llansola system to include the use of rails and tracks. The Examiner’s citation to Suzuki providing a teaching of an actuator that does not leak fluid suggests that the Examiner might be proposing replacing the hydraulic pump, valve, and piston/cylinder actuators with the Suzuki actuator. However, if that is actually what is Appeal 2019-004926 Application 15/073,835 11 proposed, then it is unclear to us what, in the modified structure, would constitute “a plurality of linear actuators” as is required by claim 1. The Examiner does not address how the Suzuki actuator could properly be regarded as being a plurality of linear actuators. If instead the proposed modification is to add rails and tracks to the existing structure in Llansola, the Examiner does not adequately explain how this is to be effected. Claim 3 requires one or more rails to be included on the air deflector that are configured to translate in a sliding manner with vehicle-mounted tracks. Assuming that this is done in accordance with the Examiner’s proposed modification, the Examiner does not indicate where, on the vehicle, the cooperating tracks would be mounted. As the air deflector is not vertically translatable relative to the pistons extending from cylinders 4, and as the air deflector, at least when lowered, is at a position lower than the cylinders, it does not seem as though tracks would be appropriate on the piston/cylinder structure. We note in passing that Figures 5 and 6 of Llansola, and the English- language machine translation thereof, might possibly suggest to a person of ordinary skill in the art that cooperating rails and tracks could be mounted to the air deflector 5 and the fixed fairing 8 of the vehicle, but it is again not at all clear if this is what the Examiner envisions with the proposed modification, and thus amounts to speculation on our part. We are thus not able to sustain the rejection on this, or any other, basis given the lack of specificity as to the proposed modification to Llansola. Appeal 2019-004926 Application 15/073,835 12 Claims 6, 11, 12, 16–19, and 21--35 U.S.C. § 103--Llansola/Suzuki The Examiner finds that Llansola does not disclose a controller that includes logic and executable instructions for vertically translating the air deflector to a position dependent on a vehicle speed. Non-Final Act. 5. The Examiner cites to Suzuki as teaching a controller 46 that includes logic and executable instructions as set forth in claim 6 (depending from claim 1), and in independent claim 11. Id. at 5–6. The Examiner concludes that it would have been obvious in view of Suzuki to employ the controller of Suzuki in the assembly of Llansola, in order to detect the speed of the vehicle. Id. at 6. Appellant argues that the Examiner cites to nothing in Suzuki that supports the position that Suzuki discloses a controller of the type claimed. Appeal Br. 20–21. In particular, Appellant points out that element 46 in Suzuki is a reversible motor, and not a logic-based controller. Id. at 20. Appellant is correct in this regard. It appears that the Examiner possibly intended the rejection to be one of obviousness over Llansola in view of Heil, in that element 46 of Heil is a logic-based controller employed in conjunction with an air deflector. See, e.g., Heil ¶¶ 20, 25. Additionally, in the rejection of claims 13 and 14, which depend from claim 11, the statement of the grounds for rejection indicates that Heil forms part of the rejection, and is “applied as to claim 11 above.” Non-Final Act. 7. However, even after Appellant highlights, as noted above, that Suzuki does not disclose a controller as claimed, and that the component relied on by the Examiner in Suzuki is a motor and not a controller, the Examiner’s Answer does make any attempt to reconcile or correct a possible error arising from citing and relying on an incorrect reference, and instead Appeal 2019-004926 Application 15/073,835 13 reiterates, with additional elaboration, that the rejection is based on the combined teachings of Llansola and Suzuki, and does not mention Heil at all. Ans. 3–5. After recapping the operating principles of Llansola and Suzuki, the Examiner points out that these two references solve the same issue as broadly as claimed in claim 11, broadly as stated in the Specification of the Application and broadly as stated on page 15 of the Second Appeal Brief, a controller comprising logic (speed of the vehicle) including executable instructions (raises or lowers the air deflector). Ans. 5. The Examiner also avers that “claim 11 is well known in the front spoiler art,” and discusses, without even a mention of any type of controller, why a front spoiler is deployed at higher speeds, and is not deployed at lower speeds. Id. None of this adequately explains why it might have been obvious to employ a controller having the limitations set forth in claims 6 and 11. We are unable to sustain the rejection of claims 6 and 11 on the basis articulated by the Examiner. The combined teachings of Llansola and Suzuki have not been shown to disclose or render obvious an air deflector assembly having a controller of the type recited in these claims. Claims 12 and 16–19 depend from claim 11, and claim 21 depends from claim 20, and includes a limitation substantially identical to that recited in claim 6. The rejection is not sustained as to these claims for the same reasons. Given that the Examiner declines to rely on Heil in this rejection, and to provide findings and conclusions based thereon, we do not take it upon ourselves to do so, either. Appeal 2019-004926 Application 15/073,835 14 Claims 13 and 14--35 U.S.C. § 103--Llansola/Suzuki/Heil Claims 13 and 14 depend from claim 11, and, despite the brief identification of Heil in the stated ground of rejection, the Examiner provides only that Heil is relied on “as applied to claim 11 above.” Non- Final Act. 7. Because, as we note in the preceding section, the Examiner does not apply Heil to claim 11, nor discuss Heil in any manner with respect to claim 11, we are unable to sustain the rejection of claims 13 and 14 to any extent that involves the teachings of Heil. We note, in addition, that claims 13 and 14 include the same limitations regarding the inclusion of cooperating rails and tracks as are present in claims 3 and 4. As such, the rejection is not sustainable over Llansola and Suzuki for the same reasons noted in the preceding discussion of the rejection of claims 3 and 4 over the combination of Llansola and Suzuki. DECISION The rejection of claims 1, 2, 5, 7, 9, and 10 under 35 U.S.C. § 102(a)(1) as being anticipated by Llansola is AFFIRMED, and is designated as a NEW GROUND OF REJECTION under 37 C.F.R. § 41.50(b). The rejection of claims 8 and 20 under 35 U.S.C. § 102(a)(1) as being anticipated by Llansola is REVERSED. The rejection of claims 3 and 4 under 35 U.S.C. § 103 as being unpatentable over Llansola and Suzuki is REVERSED. The rejection of claims 6, 11, 12, 16–19, and 21 under 35 U.S.C. § 103 as being unpatentable over Llansola and Suzuki is REVERSED. Appeal 2019-004926 Application 15/073,835 15 The rejection of claims 13 and 14 under 35 U.S.C. § 103 as being unpatentable over Llansola, Heil, and Suzuki is REVERSED. This decision contains new grounds of rejection pursuant to 37 C.F.R. § 41.50(b). Section 41.50(b) provides “[a] new ground of rejection pursuant to this paragraph shall not be considered final for judicial review.” Section 41.50(b) also provides: When the Board enters such a non-final decision, the appellant, within two months from the date of the decision, must exercise one of the following two options with respect to the new ground of rejection to avoid termination of the appeal as to the rejected claims: (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new Evidence relating to the claims so rejected, or both, and have the matter reconsidered by the examiner, in which event the prosecution will be remanded to the examiner. The new ground of rejection is binding upon the examiner unless an amendment or new Evidence not previously of Record is made which, in the opinion of the examiner, overcomes the new ground of rejection designated in the decision. Should the examiner reject the claims, appellant may again appeal to the Board pursuant to this subpart. (2) Request rehearing. Request that the proceeding be reheard under § 41.52 by the Board upon the same Record. The request for rehearing must address any new ground of rejection and state with particularity the points believed to have been misapprehended or overlooked in entering the new ground of rejection and also state all other grounds upon which rehearing is sought. Further guidance on responding to a new ground of rejection can be found in the Manual of Patent Examining Procedure § 1214.01. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). Appeal 2019-004926 Application 15/073,835 16 DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed New Ground 1, 2, 5, 7– 10, 20 102(a)(1) Llansola 1, 2, 5, 7, 9, 10 8, 20 1, 2, 5, 7, 9, 10 3, 4 103 Llansola, Suzuki 3, 4 6, 11, 12, 16–19, 21 103 Llansola, Suzuki 6, 11, 12, 16–19, 21 13, 14 103 Llansola, Suzuki. Heil 13, 14 Overall Outcome 1, 2, 5, 7, 9, 10 3, 4, 6, 8, 11–14, 16–21 1, 2, 5, 7, 9, 10 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). AFFIRMED IN PART; C.F.R. § 41.50(b)