Leopold Kostal GmbH & Co. KG

Patent Trials and Appeals Board

Dec 3, 2021

2021003716 (P.T.A.B. Dec. 3, 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.
16/026,496 07/03/2018 Michael Bleckmann KOA 0387 PUSA (R 2057) 7152
22045 7590 12/03/2021
Brooks Kushman
1000 Town Center
22nd Floor
Southfield, MI 48075
EXAMINER
CHEN, SHELLEY
ART UNIT PAPER NUMBER
3667
NOTIFICATION DATE DELIVERY MODE
12/03/2021 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):
docketing@brookskushman.com
kdilucia@brookskushman.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte MICHAEL BLECKMANN, PHILIPP CIOLEK,
ANDRE FEHLING, and ALEXANDER KAUL
__________

Appeal 2021-003716
Application 16/026,496
Technology Center 3600
__________

Before CHARLES N. GREENHUT, MICHAEL L. HOELTER, and
ANNETTE R. REIMERS, Administrative Patent Judges.

GREENHUT, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 2, 4, 5, and 7–10. See Final Act. 1.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as KOSTAL
Automobil Elektrik GmbH & Co. KG. See Appeal Br. 2.
Appeal 2021-003716
Application 16/026,496

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STATEMENT OF THE CASE
The claims are directed to an operating device for an actuator-
adjustable vehicle seat. Claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. An operating device for an actuator-adjustable vehicle
seat, comprising:
a one-piece control element having an outer contour which
simulates an outline shape of a vehicle seat;
only three force sensors including a first force sensor, a
second force sensor, and a third force sensor, the force sensors
have an identical design and each force sensor is a one-
dimensionally measuring force sensor which can measure force
magnitudes in only one dimension using capacitive, inductive, or
optical measurements, the first and second force sensors each
only measures horizontal force magnitudes and the third force
sensor only measures vertical force magnitudes, the first and
second force sensors are situated in parallel with one another, the
third force sensor is situated perpendicularly with respect to the
first and second force sensors, and the third force sensor is
situated between the first and second force sensors; and
wherein the force sensors are configured to detect pressing
actuations directed to various locations on the outer contour of
the control element for triggering different adjustment
movements of the vehicle seat, and wherein an actuation position
and an actuation direction of a pressing actuation of a finger on
the outer contour of the control element for triggering an
adjustment movement of the vehicle seat is detectable from
reaction forces of the force sensors.

REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Schmidt US 2005/0045463 A1 Mar. 3, 2005
Entenmann US 2016/0229312 A1 Aug. 11, 2016

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REJECTIONS
Claims 1, 2, 4, 5, and 7–10 are rejected under 35 U.S.C. § 103 as
being unpatentable over Entenmann in view of Schmidt. Final Act. 7.
Claim 1, 2, 4, 5, and 7–10 are rejected under 35 U.S.C. § 103 as being
unpatentable over Schmidt in view of Entenmann. Final Act. 11.
OPINION
Claims 1, 2, 4, 5, and 7–9:
Claim 1 is representative of claims 1, 2, 4, 5, and 7–9 pursuant to 37
C.F.R. § 41.37(c)(1)(iv)(2019). See Appeal Br. 4–7, 10–11. In the first
rejection, the Examiner applies Entenmann as the primary reference and
Schmidt as the secondary reference, whereas in the second rejection, the
Examiner applies Schmidt as the primary reference and Entenmann as the
secondary reference. Final Act. 7, 11. Appellant makes the same argument
for both rejections. Appeal Br. 10–12. Thus, we discuss both rejections
together.2
Independent claim 1 recites, among other limitations,
[a]n operating device for an actuator-adjustable vehicle seat,
comprising:
a one-piece control element having an outer contour which
simulates an outline shape of a vehicle seat [and]
only three force sensors . . . [in which] each force sensor
is a one-dimensionally measuring force sensor which can
measure force magnitudes in only one dimension using
capacitive, inductive, or optical measurements.
Claims App. 1.

2 This is applicable for claim 10 as well, which we address separately below
because Appellant provides a separate argument for this claim.
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Appellant contends that unlike numerical quantitatively measuring
force sensors of independent claim 1, “the force sensors of Schmidt are
mechanical binary switches which do not use capacitive, inductive, or
optical measurements” and that a mechanical binary switch “does not
measure force magnitudes but only detects binary switching signals
(on/[]off).” Appeal Br. 6. As such, Appellant argues that “the force sensors
of Schmidt do not measure force magnitudes.” Id.
These contentions are unpersuasive in that they do not address the
Examiner’s rejection. “Non-obviousness cannot be established by attacking
references individually where the rejection is based upon the teachings of a
combination of references. [The reference] must be read, not in isolation, but
for what it fairly teaches in combination with the prior art as a whole.” In re
Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citation omitted). The
Examiner finds that Entenmann discloses force sensors, in which “each force
sensor can measure force magnitudes in multiple dimensions using
capacitive, inductive, or optical measurements (P9, claim 27, etc: capacitive
measurements).” Final Act. 7. Thus, the Examiner does not rely on Schmidt
for disclosing force sensors in which each force sensor can measure force
magnitudes using capacitive, inductive, or optical measurements. See also
Ans. 14 (responding that Appellant is attacking the references individually,
citing In re Keller, 642 F.2d 413 (CCPA 1981)).
Appellant contends that
starting with the multi-dimensional, numerical quantitatively
measuring force sensors of Entenmann which use capacitive,
inductive, or optical measurements, one of ordinary skill in the
art would not look to the one-dimensional force sensors of
Schmidt as the force sensors of Schmidt are not numerical
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quantitatively measuring force sensors which use capacitive,
inductive, or optical measurements.
Appeal Br. 7.
In the Final Office Action, the Examiner first points out that Schmidt
is “[i]n the same field of endeavor.” Final Act. 8. In the Answer, the
Examiner responds that
Entenmann and Schmidt are in the same field of endeavor,
because both inventions are directed to an operating device for
adjusting a vehicle seat, wherein the operating device uses force
sensors to detect pressing actuations on a control element for
triggering different adjustment movements of the vehicle seat.
More specifically, the force sensors of both Entenmann and
Schmidt are used in a similar manner for a similar purpose - to
detect pressing actuations on a control element and trigger
adjustment movements of the vehicle seat in response to the
pressing actuations.
Ans. 15–16. Indeed, Entenmann discloses “[a]n operating device to operate
an adjustable seat of a motor vehicle” having “a sensor for detecting a size
of a force acting on the at least one third surface during the operating input”
and “an adjustment device to adjust the adjustable seat on the basis of the
control signal.” Entenmann, Abstr. Schmidt discloses “[a] motor switch cell
. . . comprising a switch cell actuator.” Schmidt, Abstr. Schmidt further
discloses that “[r]ocker switches are well known in the automotive industry
and are utilized for a wide variety of applications” that includes “electronic
seat positioning.” Schmidt ¶ 2. Schmidt also discloses that its switch cells
are “utilized to detect rotation” of a single interface button “as well as
movement in a primary direction.” Schmidt ¶ 24. In this regard, we agree
with the Examiner’s assessment that Schmidt and Entenmann are in the
same field of endeavor (as that of Appellant’s) because the devices of both
Schmidt’s and Entenmann’s, and also that of Appellant’s, have the same
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structures, i.e., sensors, and have the same functions, i.e., detecting force or
movement for adjusting a motor vehicle seat. See MPEP § 2141.01(a)(IV)
(discussing references being in the same field of endeavor because the
disclosed devices have the same structure with the same function (citing In
re Deminski, 796 F.2d 436 (Fed. Cir. 1986); In re Bigio, 381 F.3d 1320,
1325–26 (Fed. Cir. 2004)). We also note that the Appellant does not explain
why the Examiner errs in regard to the proffered rationale of replacing the
sensors of Entenmann with the sensors of Schmidt “in order to make use of
cheaper and/or simpler and/or available force sensors, with predictable
results,” i.e., Appellant does not explain why the Examiner’s proposed
modification lacks rational underpinning. See Final Act. 8. Because Schmidt
and Entenmann are in the same field of endeavor and we see no error in the
Examiner’s proposed modification, Appellant’s contention that one of
ordinary skill in the art would not to look to the one-dimensional force
sensors of Schmidt, is unpersuasive.
In the Reply Brief, Appellant contends that “[t]he operating device of
Entenmann has at least four (multiple-dimensionally measuring) force
sensors.” Reply Br. 2; see also id. at 3–4 (arguing that “[a]s each operating
part 40 and 42 (or 40 and 40; or 42 and 42) includes at least two force
sensors, the operating device 10 shown in FIG. 10 of Entenmann includes at
least four force sensors” and that “[t]he modified Entenmann operating
device would therefore still have at least four force sensors”).
We note, however, that these arguments were not raised in the Appeal
Brief, and do not appear to be responsive to any argument raised in the
Examiner’s Answer. As stated in 37 C.F.R. § 41.41(b)(2):
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Any argument raised in the reply brief which was not raised in
the appeal brief, or is not responsive to an argument raised in the
examiner’s answer, including any designated new ground of
rejection, will not be considered by the Board for purposes of the
present appeal, unless good cause is shown.
(Emphasis added). Accordingly, we consider these arguments untimely in
the present appeal. Nonetheless, even if these arguments were timely made,
they are unpersuasive for the following reasons.
In the Final Office Action, the Examiner concedes that Entenmann
does not disclose “only three force sensors” but finds that Schmidt discloses
“only three force sensors.” Final Act. 8. The Examiner then proposes
“replac[ing] the multidimensional force sensors [of Entenmann] with
multiple one-dimensional force sensors, as taught by Schmidt.” Id. (italics
added). In other words, regardless of the number of sensors Entenmann may
have, the Examiner proposes replacing all of Entenmann’s sensors with only
three of Schmidt’s sensors. We also note that the Examiner also proposes
replacing the three operating parts 40, 42, 44 of Entenmann with the one-
piece interface button 44 of Schmidt––rather than retaining Entenmann’s
three operating parts 40, 42, 44. Consequently, Appellant’s contention again
does not address the rejection.
For these reasons, we sustain the rejection of claims 1, 2, 4, 5, and 7–9
as being obvious over Entenmann in view of Schmidt and as being obvious
over Schmidt in view of Entenmann.
Claim 10:
Claim 4 depends from claim 1 and recites “the control element forms
an inclined section and a horizontal section.” Claims App. 2. Claim 10
depends from claim 4 and recites that the operating device further comprises
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Application 16/026,496

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a coupling plate mechanically connected to the force sensors, the
coupling plate having a first coupling point and a second
coupling point, the first coupling point is situated between the
first and third force sensors and is directly connected to the
control element between the inclined section and the horizontal
section of the control element so that the control element acts on
the first and third sensors via the first coupling point, and the
second coupling point is situated by the second force sensor and
is directly connected to the horizontal section of the control
element so that the control element acts on the second force
sensor via the second coupling point.
Claims App. 4. Appellant first reiterates the features of claim 10. Appeal Br.
7–9. Appellant then contends that
Entenmann and Schmidt do not include the above-noted features
of claim 10 which are the first coupling point of the coupling
plate, which is mechanically connected to the force sensors,
being situated between the first and third force sensors and being
directly connected to the control element between the inclined
and horizontal sections of the control element so that the control
element acts on the first and third sensors via the first coupling
point, and the second coupling point of the coupling plate being
situated by the second force sensor and being directly connected
to the horizontal section of the control element so that the control
element acts on the second force sensor via the second coupling
point. That is, the alleged disclosures of Entenmann and Schmidt
do not teach or suggest that the coupling plate has first and
second coupling points connected to the control element in the
manners pursuant to claim 10.
Id. at 9–10. Thus, Appellant essentially reiterates the language of dependent
claims 4 and 10 without making any substantive arguments and
consequently, does not inform us of Examiner error. See 37 C.F.R.
§ 41.37(c)(1)(iv) (statements that merely point out what a claim recites are
not considered to present an argument for separate patentability of the
claim); see also In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (Rule
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41.37 requires more than recitation of the claim elements and a naked
assertion that the elements are not found in the prior art). Nonetheless, we
note that the Examiner correctly responds that
Schmidt discloses a coupling plate (fig 2: plate 40 or 36)
mechanically connected to the force sensors (56, 58, 60), the
coupling plate having a first coupling point (left or right one of
pillar elements 38 and/or slots 42) and a second coupling point
(other one of pillar elements 38 and/or slots 42), the first coupling
point is situated between the first and third force sensors and is
directly connected to the control element (44, fig[.] 2) between
the inclined section and the horizontal section of the control
element (when modified by Entenmann so that the inclined
section sticks out at approximately a right angle from the left or
right side of control element 44) so that the control element acts
on the first and third sensors via the first coupling point (fig[.] 2,
etc[.]), and the second coupling point is situated by the second
force sensor and is directly connected to the horizontal section of
the control element (44) so that the control element acts on the
second force sensor via the second coupling point. (fig[.] 2,
etc[.]).
Ans. 16–17. Accordingly, Appellant’s contentions do not apprise us of
Examiner error.
In the Reply Brief, Appellant argues that
in Entenmann the horizontal section is formed by operating part
40 and the inclined section is formed by operating part 42.
Control element 44 of Schmidt has the same horizontal layout as
horizontal section 40 of Entenmann. Control element 44 of
Schmidt modified to include an inclined section from the left (or
right) side of control element 44 does not change the first
coupling point of Schmidt to be directly connected “between the
inclined section and the horizontal section of the control
element” pursuant to claim 10. Rather, the first coupling point of
Schmidt, just like the geometrically same second coupling point
of Schmidt, remains directly connected to the horizontal section
of the control element.
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Reply Br. 5. However, to the extent that Appellant is arguing the coupling
points of Schmidt cannot be added to the operating device of Entenmann
without further modifications, the test for obviousness is not whether the
features of a secondary reference may be bodily incorporated into the
structure of the primary reference; rather, the test is what the combined
teachings of the references would have suggested to those of ordinary skill
in the art. See In re Keller, 642 F.2d 413, 425 (CCPA 1981). Consequently,
this argument also does not apprise us of Examiner error.
For these reasons, we sustain the rejection of claim 10 as being
obvious over Entenmann in view of Schmidt and as being obvious over
Schmidt in view of Entenmann.
CONCLUSION
The Examiner’s rejections of claims 1, 2, 4, 5, and 7–10 are affirmed.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. §  Reference(s)/Basis Affirmed Reversed
1, 2, 4, 5,
7–10
103 Entenmann, Schmidt 1, 2, 4, 5,
7–10

1, 2, 4, 5,
7–10
103 Schmidt, Entenmann 1, 2, 4, 5,
7–10

Overall
Outcome
1, 2, 4, 5,
7–10

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