Appeal No. 2004-1767
Application 09/976,887
In re King, 801 F.2d 1324, 1326, 231 USPQ 136, 138 (Fed. Cir. 1986); Lindemann
Maschinenfabrik v. American Hoist and Derrick, 730 F.2d 1452, 1458, 221 USPQ 481, 485
(Fed. Cir. 1984). Whether the teachings and inferences that one skilled in this art would have
found in the disclosure of an applied reference would have placed this person in possession of
the claimed invention, taking into account this person’s own knowledge of the particular art, is a
question of fact. See generally, In re Graves, 69 F.3d 1147, 1152, 36 USPQ2d 1697, 1701 (Fed.
Cir. 1995), and cases cited therein (a reference anticipates the claimed method if the step that is
not disclosed therein “is within the knowledge of the skilled artisan.”); In re Preda, 401 F.2d
825, 826, 159 USPQ 342, 344 (CCPA 1968) (“[I]n considering the disclosure of a reference, it is
proper to take into account not only specific teachings of the reference but also the inferences
which one skilled in the art would reasonably be expected to draw therefrom.”).
We find that, when considered in light of the written description in the specification,
including the drawings, as interpreted by one of ordinary skill in this art, see, e.g., In re Morris,
127 F.3d 1048, 1054-55, 44 USPQ2d 1023, 1027 (Fed. Cir. 1997); In re Zletz, 893 F.2d 319,
321-22, 13 USPQ2d 1320, 1322 (Fed. Cir. 1989), appealed independent claims 1 and 6 specify
that the claimed method of operation for a vehicle braking system comprises at least the step of,
inter alia, “measuring a position of the brake pedal using a brake pedal position sensor and
determining a rate of change in brake pedal movement when the driver is depressing the brake
pedal.” Thus, the plain language of claims 1 and 6 require that a brake pedal position sensor that
determines a position of the brake pedal per se be used to measure positions of the brake pedal
as well as to provide data to determine the rate of change in the movement of the brake pedal
when depressed by the driver.
Appellants point out in the brief and reply brief that Shimizu does not disclose a “brake
pedal position sensor.” The examiner acknowledges in the answer that Shimizu has “no
disclosure of a separate stroke sensor” (answer, page 4).
Even in view of the absence of a disclosure in the reference of an element to determine a
brake pedal position per se, and thus, also the element of determining the rate of change in brake
pedal movement using sensor data, the examiner takes the position that “the pressure sensor of
2 The examiner states in the answer (page 3) that the ground of rejection is set forth in the final
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