In a recent ex parte appeal to the PTAB (13/296,787), BMW challenged a rejection related to a way to utilize an electronic braking system upon actuation of an operative element (e.g., a parking brake). Claim 1 is set forth below.

1. A driver assistance system in a motor vehicle, comprising:

an electronically controllable braking system;

an operating element in the motor vehicle assigned to the electronically controllable braking system;

a control unit, in the motor vehicle, operatively coupled to the electronically controllable braking system and the operating element, wherein when the operating element is actuated, an automatic braking function is initiated to carry out normal braking via the electronically controllable braking system independent of any actuation of a brake pedal; and

wherein the control unit is operatively configured such that, when the operating element is continuously actuated beyond a predefined minimum duration, an emergency braking function is initiated via the electronically controllable braking system.

The Examiner maintained a rejection of claim 1 asserting that a prior art reference (Walker) showed the claimed emergency braking function by expanding shoes out to the drum surfaces in a pulsed action according to a pre-programmed circuit that receives vehicle speed data. In order to reach the claimed minimum duration, the Examiner explained that the on/off time applied to the brakes in the pulsing action was the claimed "predefined minimum duration" that initiates an emergency braking function.

The Examiner's approach to the rejection of claim 1 is typical of many rejections in which an unreasonably broad interpretation is utilized to justify citation of a reference that is clearly missing claim elements. The problem for the Examiner here was that the claim explicitly tied the duration to the operating element (e.g., the parking brake) that is actuated to initiate the normal braking. The cited reference (Walker) specifically used vehicle speed to set the on/off duration of the pulses. The Board therefore found it easy to overturn the rejection.

It is interesting to note the claim language of a control unit operatively coupled to the braking system to perform certain acts "when" a certain condition is present. This language was sufficient for the Board to require a link in the cited art between the actuation and the initiation of the braking system. Some Examiners argue that language only specifying "when" can cover the situation where things occur at the same time by happenstance. I.e., at some point a driver may pull the parking brake "when" the pulsed braking is occurring. In any event, the Board did not raise this point sua sponte.