Examiner interpretations can be quite creative, even if unsupported and far afield from what the ordinary artisan might understand. We see this under BRI, but “creative” interpretations can also be applied to what the cited art shows. Here we see an example in a Toyota application where an examiner attempts to use manufacturing tolerances and inherent errors in sensor readings to support a rejection when the cited art was clearly missing claimed elements. Appeal 2022-001180, application 16/000,369.

claim 1:

1. A control system for a vehicle, comprising:
an electronic control unit disposed in the vehicle and configured to:
(i) have an automatic stop-restart function that automatically stops an engine when a predetermined automatic stop condition is satisfied and that restarts the engine when a predetermined restart condition is satisfied during an automatic engine stop;
(ii) have an automatic stop restricting function that prohibits an automatic stop of the engine when the vehicle is located at a first position that is less than a predetermined distance from a temporary stop point;
(iii) determine, when the vehicle is located at the first position, whether there is another vehicle that travels ahead of the vehicle and is located at a second position that is between the vehicle and the temporary stop point; and
(iv) deactivate the automatic stop restricting function when the electronic control unit determines that the another vehicle is located at the second position regardless of whether the automatic stop of the engine is prohibited by the automatic stop restricting function.

One issue was the feature of step (ii). The examiner relied on prior art that controlled automatic engine stopping responsive to the vehicle being stopped at an intersection. Specifically, the examiner considered that because the cited art used sensors to detect that the vehicle was at an intersection, in reality the sensors have some errors and so the cited art could be considered to determine that the vehicle is located at a position that is less than a predetermined distance from a temporary stop point.

In other words, the Examiner attempted to explain the application of the cited art to the claimed element by asserting that “all sensors have a manufacturing tolerance that represents [sic] the inevitable error between a measure value and a true value.” Further, the examiner asserted that the cited art’s “navigation device identifies when the vehicle is within a predetermined distance from the preset position corresponding to the specificity of error that is allowed between the measured and true values of position.” It seems like a strange hill to die on, but examiners frequency double down on losing positions rather than do the unthinkable - issue a new action for no points.

The PTAB was not impressed with the examiner’s creative thinking:

… Contrary to the Examiner’s assertion, the tolerance referenced by the Examiner merely acknowledges that devices may not be entirely accurate in determining exact locations and/or distances. Allowing a margin of error of, for example, ten feet does not mean that [the cited art] has determined that it is ten feet away from a temporary stop point, it simply means that [the cited art] will consider itself as being at the temporary stop point as long as it is within ten feet. The point of this limitation in the claims is to differentiate between being at the stop point and being a predetermined distance away from the stop point. [the cited art] makes no such distinction identified by the Examiner.

What made the examiner’s interpretation so easy to overturn here was, in part, that simple logic illustrated how, even assuming the tolerances were present, the cited art nevertheless did not make the required determination. If an applicant can present arguments showing how a rejection errs even assuming an examiner’s thought experiment is actually correct, then the applicant typically has a good chance on appeal.

So, don’t be surprised by wacky “interpretations” of prior art by examiners, and, where possible, focus your arguments on showing why the rejection errs even forgetting the wackiness.