Wednesday, November 17, 2010

BPAI affirms obviousness because airbag inflatable to a graphically determined pressure does not structurally distinguish over any other airbag


Takeaway: In Ex parte Bayley, the BPAI affirmed an obviousness rejection because "an airbag inflatable to a first pressure  ...  determined from a graph that plots pressure versus thickness" did not distinguish the airbag from any other airbag. The BPAI found that the pressure determination limitation was not a structural limitation, and thus did not give it patentable weight.

Details:
Ex parte Bayley
Appeal 2009008110, Appl. No. 11/175,731, Tech. Center 3600
Decided October 21, 2010

The claims were directed to a vehicle airbag system. The limitation at issue (emphasized below) related to the pressure used to inflate the airbag.

19. A system for helping to protect an occupant of a vehicle ... said system comprising:
     an inflatable vehicle occupant protection device  ... ; and
     an inflation fluid source actuatable to provide a volume of inflation fluid to said inflatable volume sufficient to inflate said inflatable vehicle occupant protection device to at least a first pressure,
     said first pressure being determined from a graph that plots pressure in said inflatable vehicle occupant protection device versus said thickness of said inflatable vehicle occupant protection device ...

The Examiner rejected claim 19 as obvious. The Examiner relied on one reference to teach a relationship between inflation pressure and airbag thickness, and another reference to teach all the other elements.

The Examiner indicated that no patentable weight was given to using a graph to determine the inflation pressure. The Examiner characterized this use of a graph as merely “an intermediary step in a design process” and “not germane to the patentability of the apparatus because there is no structure that is imparted by the design step that distinguishes the airbag claimed from the prior art airbag.”

In the Appeal Brief, the Applicant argued that the graphically determined inflation pressure was a structural rather than a process limitation and should therefore be given patentable weight. Specifically, the Applicant argued that the limitation of a “graphically approximated pressure” should be interpreted as a structural limitation because it defines the pressure of the inflation device, which is “an objectively observable characteristic of the device.” According to the Applicant, the relationship embodied by the graph “imparts upon the protection device a particularized inflation pressure depending on the thickness of the airbag.”

The Applicant went on to explain similarities between the limitation of claim 19 and other types of limitations, all of which the Applicant said were structural:
     Claim 19 recites the structural limitation of a pressure that is determined graphically. More specifically, the structure recited in claim 19 is that of a protection device and an inflator that provides a volume of inflation fluid sufficient to inflate the protection device to at least a first pressure, the magnitude of which is approximated from a plotted point on a graph that plots the inflated thickness of the protection device versus the inflated pressure of the protection device. This structure cannot be described in any other way and therefore must be given patentable weight.
     The scope of this claim element is no less structural, and therefore no less germane to patentability, than a recitation of a specific pressure (e.g., 20 psi/g), a specific formula (e.g., pressure equal to a mathematical formula based on thickness), or a specific function (e.g., a pressure sufficient to prevent an object from striking through the inflated thickness of the protection device).

The Board was not persuaded, deciding that "an inflation pressure value determined from a plot of inflation pressure versus airbag thickness" was not a structural limitation. Referring to the Appeal Brief's list of alternative ways to express the function of inflating, the Board explained that:
Appellants have not provided any evidence to show that an airbag having an inflation pressure chosen from a plot of inflation pressure versus airbag thickness is any different structurally from an airbag having an inflation pressure chosen from a table of inflation pressures and airbag thicknesses or an airbag having an inflation pressure and airbag thickness derived experimentally. An attorney's arguments in a brief cannot take the place of evidence. In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974).
The Board then affirmed the obviousness rejection.

My two cents: I think the Board's point – the airbag in the claim is not different than the airbag in the reference – is very important. But it's also subtle. The distinction (presumably) is the actual mechanism used to inflate to the desired pressure –  but that mechanism wasn't actually claimed.

What's going on here is what I call "inferential claiming." The Applicant claimed around the mechanism for inflating to a desired pressure, by referring to an inflation value that was determined in a specific way (a graph). But the claim did not expressly recite the mechanism.

How should the claim have been drafted? Let's assume that software running on a processor determined the desired inflation pressure based on airbag thickness. Then the claim should recite the processor as a structural element, and use functional language to describe how the processor controls the inflation. Maybe even throw in more structure, in the form or an actuator or valve, controlled by the processor. 

Now, I'm not suggesting that my improved claim is patentable over the references. If you throw in a reference that teaches processor-controlled inflation, the Applicant's inflation mechanism may well be obvious in light of the relied-upon reference that taught a relationship between thickness and pressure.

What I am saying is it's a really good idea to make sure the novel mechanism is actually expressed in the claim.

I'll mention one more criticism I have of the claim as written: the use of "a graph" in the claim. The way I see it, the software doesn't literally use a graph to determine inflation values. A table, maybe. A graph, no. So I'd stay away from "graph" and claim the software using a functional relationship between pressure and thickness.

10 comments:

  1. I think the structural aspect may be addressed by citing that a) the volume of the inflatable areas of the inflatable curtain and/or b) the volume of the inflation fluid source is determined by a desired pressure. This approach appears to address a tangible parameter rather than "pressure" which is kinda like vapor-ware.

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  2. I don't think the problem here is the type of parameter in the claim, ie, intangible (?) pressure vs. tangible (?) volume.

    I see your volume parameter as having the same problem: not distinguishing structurally. To paraphrase the Board's language, but referring instead to your volume parameter:

    "How is an airbag having a VOLUME chosen from a GRAPH any different (structurally) from an airbag having a volume chosen from a TABLE or an airbag having a volume derived EXPERIMENTALLY?"

    The airbag is the same airbag in all three scenarios. Right?

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  3. "Then the claim should recite the processor as a structural element, and use functional language to describe how the processor controls the inflation."

    A claim to an airbag that includes the processor then using functional language?

    God you're re tarded. One day soon your functional language balloon is going to come crashing down.

    Oh and btw, in this case it isn't talking about using a graph on the fly to determine how inflated it gets, as far as can be seen anyway. It is talking about using a graph during the design of the airbag, as in pre-installation.

    Not to mention that the obvious way to claim this is to, oh I DON"T KNOW, CLAIM THE STRUCTURE?

    Let me put this in hillbilly for you. If you ain't got a structural difference then you ain't got a device claim. It's as simple as that, and tards like this attorney in this case just do not understand it. For his defence however that fact may not have been presented to him in such a way as he understood. Or maybe he just stood up (sat down and wrote?) and lied to zealously advocate.

    "What I am saying is it's a really good idea to make sure the novel mechanism is actually expressed in the claim. "

    Yep and to avoid processor with functional language, because boys like this examiner will smack the bejesus out of your claim if you choose to use it. Just the same as I would. Your computer arts coddling doesn't happen in the real AU's.

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  4. In my opinion, Anonymous above is a metaphor for a certain type of Examiner. It never ceases to amaze me that it doesn't phase him/her that the CAFC has repeatedly indicated in their decisions that a processor or computer that is programmed in one manner (to perform a certain function) is structurally different from a processor or computer programmed in a different manner.

    Yet, Anonymous above will hang on to his/her unsupported rejection, seemingly out of some sort of spite toward the applicant.

    /s/Liam

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  5. Or you could go with the way they claimed it in the allowed independent claim 11, which recites an equation they used to generate the data that populated one of the graphs. Or you could go with the way they claimed it in the allowed independent claim 15, which recites an equation they used to generate the data that populated the other of the graphs. It's not like they didn't get a patent here, or that functional language wasn't used to recite structure in allowed claims. It's just that the BPAI agreed with the Examiner that merely reciting "using a graph" was not specific enough to impart structure. It does not necessarily follow that the claim would not have been allowed if the values plotted in that graph had been specified.

    -TINLA IANYL

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  6. "In my opinion, Anonymous above is a metaphor for a certain type of Examiner. It never ceases to amaze me that it doesn't phase him/her that the CAFC has repeatedly indicated in their decisions that a processor or computer that is programmed in one manner (to perform a certain function) is structurally different from a processor or computer programmed in a different manner."

    Lulz

    Nothing much phases 6tard. Except the logic games on the LSAT.

    Lulz for everybody!!!

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  7. >CAFC has repeatedly indicated in their
    >decisions that a processor or computer that
    >is programmed in one manner (to perform a
    >certain function) is structurally different
    >from a processor or computer programmed in a
    >different manner.

    Right.

    Say, for example, in Aristocrat Techs. Australia v. Intern. Game Tech., 521 F. 3d 1328 (Fed. Cir. 2008) ("[A] general purpose computer programmed to carry out a particular algorithm creates a 'new machine' because a general purpose computer 'in effect becomes a special purpose computer once it is programmed to perform particular functions pursuant to instructions from program software.' ")

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  8. " never ceases to amaze me that it doesn't phase him/her that the CAFC has repeatedly indicated in their decisions that a processor or computer that is programmed in one manner (to perform a certain function) is structurally different from a processor or computer programmed in a different manner.
    "

    It never ceases to amaze you that the Fed. Circ. routinely f's up its jurisprudence? Me neither.

    Trust me, it isn't out of spite for the applicant, it is out of spite for the bungled "lawl" the CAFC has been busy creating for a decade or 4.

    I won't be a party to that nonsense. And neither should anyone else.

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  9. Lulz, yeah looking at other claims all I can say is that this particular examiner knew how to fight one good fight but didn't know how to fight the rest of the good fights that they need to.

    I wonder how many uses a certain formula actually has. I wonder also how many of those uses are preempt by a certain claim.

    I also wonder if it is proper grammatical english to ever say that a pressure has a "functional relationship" with a thickness? Probably not very. Objectionable.

    Pressures, having "functional relationships" with thicknesses? Lulz. I wonder which function it has a relationship with it in terms of? Silly rabbit. Trix are for kids. And for asleep examiners apparently. But certainly not for litigators. What a bungled examination. I look forward to a "Chef America" claim construction locking out any would be infringers from infringing.

    Finally I note that it is far from impossible for them to distinguish their product in terms of structure. They wrote several of the values of thickness they want RIGHT IN THE DRAWINGS. Same with the pressures. Furthermore, them wanting to distinguish the inflation fluid source in terms of the pressure it supplies rather than its structure may very well be an appropriate use of functional language and would have been fine. That is, specifying the function of the inflation fluid source to be to provide pressure as determined by whatever formula. (note this is subject to 101 and 103 considerations)

    Also, as someone who went through rolling a truck, I think it'd be better to have an airbag on the ceiling than between you and the door. You're rolling. In the truck. That means that you hit your head on the roof and you pretty much stay that way, you don't really hit the door. Your horizontal inertia is matched closely with the truck's. Trust me. I know. I was there.

    In summary, all but useless invention (who is going to pay to install one of those?), sloppy drafting, horrible examination, sloppy appealing, worthless analysis here.

    Par for the course.

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  10. "you hit your head on the roof"

    Explains a lot. Now we know how 6 got this way.

    TINLA IANYL

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