Appeal No. 2004-1767
Application 09/976,887
pressure to determine braking application and rates of change” (id.; see also reply brief,
paragraph bridging pages 2-3).
We cannot subscribe to the examiner’s contention that Shimizu anticipates the claimed
method encompassed by the appealed claims because the use of pressure measurements to
determine the operational speed and amount of operation and thus, the movement or “pedal
stroke L” of brake pedal 30 is equivalent to the use of a position sensor to sense a position of the
pedal per se as required by appealed independent claims 1 and 6 as we interpreted these claims
above. Indeed, as appellant argues, pressure sensors and position sensors generate different data
requiring different processing.
We find no objective evidence or scientific explanation in the record establishing that the
knowledge of one skilled in this art would place that person in possession of the claimed
invention encompassed by the appealed claims upon becoming acquainted with Shimizu. See
Graves, 69 F.3d at 1152, 36 USPQ2d at 1701, and cases cited therein. Thus, on this record, the
examiner’s position raises the issue of whether one of ordinary skill in the art would have
modified the teachings of Shimizu by the interchange of equivalents to arrive at the claimed
invention, with and without the citation of an additional reference(s) to establish the substitution,
which, of course, involve issues of obviousness that are appropriate only under 35 U.S.C.
§ 103(a). See, e.g., See B.F. Goodrich Co. v. Aircraft Braking Sys. Corp., 72 F.3d 1577, 1582,
37 USPQ2d 1314, 1318 (Fed. Cir. 1996) (“When obviousness is based on a particular prior art
reference, there must be a showing of a suggestion or motivation to modify the teachings of that
reference. [Citation omitted.] This suggestion or motivation need not be expressly stated.
[Citation omitted.]”); In re Siebentritt, 372 F.2d 566, 152 USPQ 618 (CCPA 1967) (express
suggestion to interchange methods shown in different references which achieve the same or
similar results is not necessary to establish obviousness).
Accordingly, we determine as a matter of fact that Shimizu does not describe the claimed
invention encompassed by the appealed claims within the meaning of § 102(b), and thus reverse
the ground of rejection.
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