IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`(Case No. 26760US01)
`
`In the Application of David S. Breed
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`US. App. No.:
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`11/930,330
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`Filed on:
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`October 31,2007
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`For:
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`SINGLE SIDE CURTAIN AIRBAG
`FOR VEHICLES
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`Examiner:
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`Rodney P. King
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`Group Art Unit:
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`Conf. No.:
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`3665
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`9735
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`DECLARATION UNDER 37 C.F.R. § 1.132
`
`Commissioner for Patents
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`Dear Sir/Madam:
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`I, Louis R. Brown, declare as follows:
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`1.
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`I have been hired by the law firm of McAndrews, Held & Malloy, Ltd. on behalf
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`of the assignee, American Vehicular Sciences ("A VS"), in connection with the prosecution of
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`the above-identified patent application before the U.S. Patent and Trademark Office.
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`2.
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`I am not an employee of McAndrews, Held & Malloy, Ltd. or any affiliate,
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`parent, or subsidiary.
`
`IPR2016-01794
`American Vehicular Science, LLC
`Exhibit 2017
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`3.
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`I am not an employee of the ass1gnee, AVS, or of any affiliate, parent, or
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`subsidiary of the assignee.
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`4.
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`I am being compensated for my time as an expert witness on this matter at an
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`hourly rate only. My compensation does not depend in any way on my opinions or conclusions,
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`nor on the result of this proceeding or any other proceeding involving the above-referenced
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`application.
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`5.
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`I received a Bachelor of Science degree in Mechanical Engineering from the
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`University ofDetroit in 1962.
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`6.
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`I was a candidate for a Master of Science degree in Mechanical Engineering and
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`completed eighteen (18) credits by 1974 at the University ofMichigan.
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`7.
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`I am a Registered Professional Engineer and have about fifty (50) years of
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`hands-on engineering experience with a focus in research and development of vehicle safety
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`instruments including automobile airbag systems when I worked as a Staff Engineer at TRW
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`Transportation Electronics Division from 1984- 1987, and then as a Senior Research Engineer
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`at TRW Vehicle Safety Systems, Inc. Research & Development from 1987- 1999. Since 1999,
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`I have been consulting in the same field.
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`8.
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`I am the inventor of forty-four (44) U.S. Patents issued from 1971 to 2010.
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`About forty (40) of my U.S. patents relate to vehicle safety, and at least thirteen (13) of my U.S.
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`patents are specifically related to airbags.
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`9.
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`I have reviewed the above-identified patent application including the pending
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`claims. I have further reviewed the Non-Final Office Action dated March 28, 2014 ("Office
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`Action") in the above-identified patent application. I have also reviewed all of the documents
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`cited in the Office Action including, but not limited to, U.S. Patent No. 3,510,150 ("Wilfert"),
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`U.S. Patent No. 5,366,241 ("Kithil"), and U.S. Patent No. 3,747,952 ("Graebe").
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`10.
`
`Although the Office Action states that Kithil discloses "a single airbag 16 to
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`deploy into the passenger compartment along a lateral side of the vehicle (Col. 5, lines 21-35;
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`Fig. 2)" (see Office Action at p. 3), I disagree. Col. 5, lines 21-35 and Fig. 2 of Kithil do not
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`disclose or illustrate a single airbag 16 to deploy along a lateral side of the vehicle as stated in
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`the Office Action. In fact, there is no disclosure in Kithil of a single airbag 16 arranged to
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`deploy into the passenger compartment along a lateral side of the vehicle. Kithil's airbag
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`system is not along a lateral side of the vehicle, but is instead directly over the head 26 of the
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`driver and the steering wheel28.
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`11.
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`To further clarify the side view shown in Fig. 2 of Kithil, I have created a top
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`view of the Kithil's Fig. 2 Side View of the Inflator & Airbag and the Sensor/Electronics
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`Modules as disclosed in Col. 5, lines 21-35 ofKithil. My top view of Fig. 2 clearly shows the
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`hollow mounting tube 2 extends above the driver's head 26 to the steering wheel28. The airbag
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`module 14 (i.e., the inflator & airbag sensor module) is directly above the steering wheel.
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`When the air bag deploys, it deploys along the front of the vehicle between the steering wheel 28
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`and the driver 26. Thus, the airbag 16 is not arranged to deploy along a lateral side of the
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`vehicle as stated in the Office Action. See Office Action at p. 3. It is my opinion that Kithil
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`does not contemplate that its airbag system can be used in a side impact airbag system.
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`12.
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`Kithil's Fig. 4 and Fig. 11 further illustrate that the airbag 16 is deploying in
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`front of the driver 26 and not along a lateral side of the vehicle. Fig. 4 shows that the airbag
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`module 14 is arranged along the front of the vehicle and above the steering wheel 28. The
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`airbag 16 is shown inflated between the steering wheel 28 and the seat cushion 66 where the
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`driver sits. This is also illustrated in Fig. 11 ofKithil. Also, Kithil's Claims 1 (element (b)), 10
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`(element (b)), 12 (element (b)), and 13 (element (13b )) specifically disclose inflation and
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`deployment of an airbag in front of a passenger.
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`13.
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`In my opinion, Kithil's airbag system is not suitable for use as a side impact
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`airbag system.
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`In a side impact crash, for example, the vehicle might rollover on its side.
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`However, Kithil discloses that its airbag is released early "to allow deflation of air bag 16 and
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`free the passenger from the restraint and blockage of view caused by air bag 16." Col. 8, lines
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`59-64 of Kithil. The reason for deflating the airbag and freeing the driver to see is so that the
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`driver can "bring the vehicle to a stop." See Col. 2, lines 47-52 of Kithil. However, if the
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`airbag 16 were used in a side impact airbag system, it would fail to secure the driver during a
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`vehicle rollover since it would detach (see, e.g., Col. 2, lines 56-58 of Kithil ("air bag release
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`means")) and deflate. Failing to secure the driver during a vehicle rollover due to airbag
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`deflation or detachment would have lethal consequences or cause serious bodily harm for the
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`driver. Thus, it is my opinion that Kithil's airbag system is not suitable for use as a side impact
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`airbag system because it is unsafe.
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`14.
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`In my opinion the disclosure in Kithil of a nozzle or flow restrictor/nozzle that is
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`varied as a function of temperature only serves the purpose of releasing the airbag when the
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`temperature in the nozzle is sufficient to expend and release the bimetallic clamp. If this gas
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`generating system were implemented in a side impact crash with an associated rollover of the
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`vehicle, the side curtain airbag would disengage and become incapable of restraining the
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`occupants.
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`15.
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`I respectfully submit that, for at least the reasons stated above, it does not make
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`sense from a safety standpoint, which should be the central concern for any airbag system, to
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`use Kithil's airbag system as the basis for any side impact airbag system. I also conclude that
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`one of ordinary skill in the art would not use Kithil's airbag system as the basis for any side
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`impact airbag system in view of safety concerns. In particular, in my opinion, one of ordinary
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`skill in the art would not combine the teachings ofKithil and Wilfert, and would not use Kithil's
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`airbag system with Wilfert's features since it is not safe to use Kithil's airbag system with
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`Wilfert's features.
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`16.
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`I respectfully submit that the Side Impact Curtain Airbag disclosed in the Breed
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`Application (i.e., U.S. Application No. 11/930,330) will deploy and act to restrain belted,
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`unbelted and out of position occupants in at least 30 mph Side Impact Crashes and in Rollover
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`Crash Events. Also, the Breed Application discloses (p. 51, lines 3 7 -40) that the curtain airbag
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`will remain inflated to restrain occupants for 5 to 7 seconds.
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`In my opinion, such inflation
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`duration is sufficient to secure the occupants in the event of a side impact crash with an
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`associated rollover of the vehicle.
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`17.
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`In my opinion, Kithil teaches one of ordinary skill in the art to use a single airbag
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`16 that deploys from above the steering wheel 28 and that provides protection for only one person,
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`namely, the driver. This is shown, for example, in Fig. 2 of Kithil in which one airbag 16 is
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`deployed to protect one person (i.e., the driver). Thus, it is a logical conclusion that to cover two
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`people, one of ordinary skill in the art after reading Kithil would use two airbags 16.
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`18.
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`In my opinion, Wilfert teaches one of ordinary skill in the art that multiple airbags
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`20 are necessary to cover multiple people along a lateral side of a vehicle. Fig. 2b of Wilfert shows
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`that multiple airbags 20 are used to protect multiple people. Thus, just as in Kithil, it is logical
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`conclusion that to cover two people, one of ordinary skill in the art after reading Wilfert would use
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`multiple airbags 20.
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`19.
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`I respectfully submit that one of ordinary skill in the art, after reading Kithil and
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`Wilfert, would not use one airbag along a lateral side of a vehicle to protect two people (i.e., the
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`driver and the occupant behind the driver).
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`20.
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`I respectfully submit that neither Kithil or Wilfert discloses or teaches protecting
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`multiple people with a single side airbag.
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`21.
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`In my opinion, Kithil teaches away from the combination with Wilfert. Wilfert
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`shows multiple airbags on a lateral side of a vehicle. However, the airbag system in Kithil cannot
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`be used in a side impact airbag system for safety concerns as noted above in paragraphs 13-15. As
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`noted in paragraphs 13-15 above, the airbag system in Kithil would undermine the safety of a side
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`impact airbag system during a side impact crash in which the vehicle is vulnerable to a rollover.
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`Thus, the airbag system in Kithil teaches away from any combination with any side airbag system.
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`22.
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`I respectfully submit that there is no disclosure in Wilfert that the lines
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`connecting the air-cushion protective elements 20 perform any function other than attaching and
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`holding the air-cushion protective elements 20 together.
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`23.
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`I respectfully submit that there is no disclosure in Wilfert that the lines
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`connecting the air-cushion protective elements 20 are conduits and that there is no disclosure in
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`Wilfert that the lines connecting the air-cushion protective elements 20 provide a gas flow
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`communication between the individual protective elements 20.
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`24.
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`I respectfully submit that the multiple inflatable elements in Wilfert are
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`externally tethered to one another, but have significant uncushioned voids between them and,
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`thus, the external connections or tethers of Wilfert provide no cushioning effect.
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`25.
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`I respectfully submit that the uncushioned voids between the air-cushion
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`protective elements 20 in Wilfert can have lethal consequences or can cause serious bodily harm
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`for occupants who impact a hard surface within a void instead of the air-cushion protective
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`elements 20.
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`26.
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`I respectfully submit that the uncushioned voids between the air-cushion
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`protective elements 20 in Wilfert can have lethal consequences or can cause serious bodily harm
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`for occupants should an external object (e.g., a pole, another car, etc.) penetrate the vehicle at an
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`uncushioned void and reach an occupant during a side impact crash.
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`27.
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`In my opinion, the subject matter recited in the pending claims such as claim 1,
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`for instance, in the present application (i.e., the Breed Application) overcome the shortcomings
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`of Wilfert by providing a single airbag that has a plurality of compartments in flow
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`communication with each other, thereby creating a continuous cushioned protective wall and
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`eliminating the uncushioned spaces or voids present in Wilfert.
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`28.
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`I respectfully submit the subject matter recited in the pending claims such as
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`claim 1, for instance, in the present application (i.e., the Breed Application) has a single
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`inflatable element that has multiple compartments, which are in gas flow communication with
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`each other. This is quite different from the disclosure of Wilfert, which sets forth multiple
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`inflatable elements that are independently inflated and are not in gas flow communication with
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`each other. The only connections between the isolated inflatable elements in Wilfert are
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`external cords or tethers, which presumably only maintain the relative positions of the separate
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`inflatable elements.
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`29.
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`In my opinion, the tube elements 40 as shown, for example, in Figs. 1 and 2 in
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`Graebe are individual and separate airbags 40 of the protective device 2 and not a single air bag.
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`30.
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`In my opinion, one of ordinary skill in the art, after reading Graebe, would
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`understand that the tube elements 40 are individual and separate airbags 40 of the protective
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`device 2 and not a single airbag. Graebe distinguishes between a "single large air bag" and a
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`"multiplicity of tube elements 40." Col. 4, lines 39-41 ofGraebe. Graebe clearly states
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`[t]he presence of a multiplicity of tube elements 40, instead of a single
`large air bag, causes only the deployment energies of those tube elements
`42 that engage the occupant to be absorbed by the occupant which greatly
`reduces the chances of injury to the occupant over those of a large bag.
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`Col. 4, lines 39-44 of Graebe (emphasis added). Thus, Graebe does not consider the multiplicity of
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`tube elements 40 to be the same as a single airbag, but instead considers the multiplicity of tube
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`elements 40 to be an alternative to a single airbag. Thus, in my opinion, one of ordinary skill in the
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`art, after reading Graebe, would understand that Graebe does not disclose a "single airbag [that]
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`has a plurality of compartments," but instead discloses a plurality of separate airbags (i.e., the
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`tube elements 40) that are individually connected to the manifold 22.
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`31.
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`In my opinion, Graebe discloses a multiplicity of separate airbags (i.e., the tube
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`elements 40) in flow communication with the manifold 22, instead of a single airbag that has a
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`plurality of compartments in flow communication with each other.
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`32.
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`I respectfully submit that Graebe discloses that the multiplicity of airbags (i.e.,
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`the tube elements 40) that are in direct flow communication with the manifold 22.
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`33.
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`I respectfully submit that Graebe discloses that the tube elements 40, which are
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`not a single airbag, are deployed from the front dashboard 18 and are not deployed from a
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`lateral side of the vehicle. There is no disclosure in Graebe that the tube elements 40 can be
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`deployed from a lateral side of a vehicle.
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`34.
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`In my opinion, the tube elements 40 system of Graebe is not safe for use on a
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`lateral side of a vehicle or in a side impact airbag system.
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`35.
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`In my opinion, Graebe's tube elements 40 would be unsafe if deployed from a
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`lateral side of a vehicle or in a side impact airbag system because the cross sectional surface of
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`the side of the occupant (e.g., a driver, a passenger, etc.) is much smaller than the cross sectional
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`surface of the front of the occupant. In other words, when the tube elements 40 are deployed
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`from the front dashboard 18 as disclosed in Graebe, the tube elements 40 might cushion the
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`occupant by coming in contact with the occupant's front portion. However, fewer tube
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`elements would be available to support the occupant from the side because of the smaller cross
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`sectional surface of the side of the occupant. If the tube elements 40 are deployed from the side
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`of a vehicle, the occupant would fall between tube elements 40 or the fewer number of tube
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`elements 40 would be unable to support the occupant. In either situation, the occupant would
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`come into contact with the side of the vehicle with the possibility of lethal consequences or
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`serious bodily harm for an occupant, and is further evidence that Graebe's tube elements 40 are
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`not contemplated for use in a side impact airbag system.
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`36.
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`I respectfully submit that the disclosure in Graebe of "a protective device 2 of
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`tube elements 40 that are in flow communication with each other, and are inflated by a gas
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`generator," would not restrain an occupant (if belted, unbelted or out of position) in a vehicle in
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`a side impact crash. If these tube elements 40 were located to deploy on the lateral side of a
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`vehicle, the occupant's head, neck and upper torso would penetrate between these tubes and
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`impact the vehicle b-pillar, a-pillar, or the other side wall hard surfaces. Such an impact would
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`have lethal consequences or cause serious bodily harm. Further, falling between the tube
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`elements 40 would also expose the occupant to the possibility of a direct impact from an
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`external object (e.g., a pole, another car, etc.) penetrating the vehicle.
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`37.
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`I respectfully submit that the disclosures in Graebe of "a protective device 2 of
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`tube elements 40 that are in flow communication with each other, and are inflated by a gas
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`generator" will not function effectively in a side impact crash. Also disclosed, "[t]he gas
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`entrapped in each tube element 42 that is being collapsed by the occupant, is caused to flow into
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`the manifold and will pass into other flexible elements 42." (Col. 5, lines 9-12 ofGraebe.) In a
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`30 mph side impact crash, for example, the airbag energy absorption must function within 10 to
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`30 milliseconds. The fluid dynamics of displacing inflation gasses from tube elements 42 back
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`into a manifold 22 (that is at a higher pressure than tubes 42) will not function in this limited
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`time frame.
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`38.
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`I respectfully submit that, for at least the reasons stated above (see, e.g.,
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`paragraphs 34-37), it does not make sense from a safety standpoint, which should be the central
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`concern for any airbag system, to use Graebe's tube element 40 system as the basis for lateral
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`deployment of airbags or any side impact airbag system. I also conclude that one of ordinary
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`skill in the art would not use Graebe's tube element 40 system as the basis for any side impact
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`airbag system in view of safety concerns. In my opinion, in view of at least the safety concerns,
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`one of ordinary skill in the art would not combine the teaching of tube elements 40 in Graebe
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`with the teachings of Kithil or Wilfert, especially in the context of a side impact air bag system.
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`39.
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`In my opinion, the teachings of Graebe would cause one of ordinary skill in the
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`art to take a different path from using a single airbag and instead to use multiple airbags (i.e.,
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`multiple tube elements 40 in Graebe) to protect a single occupant. In particular, Graebe clearly
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`states that
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`[t]he presence of a multiplicity of tube elements 40, instead of a single
`large air bag, causes only the deployment energies of those tube elements
`42 that engage the occupant to be absorbed by the occupant which greatly
`reduces the chances of injury to the occupant over those of a large bag.
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`Col. 4, lines 39-44 of Graebe (emphasis added). Thus, in my opinion, one of ordinary skill in
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`the art, after reading Graebe, would have been persuaded to abandon using a single airbag for a
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`plurality of tube elements 40 to cushion a single occupant to "greatly [reduce] the chances of
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`injury" compared to using a single airbag. Col. 4, line 43 of Graebe.
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`40.
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`Graebe also discloses that
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`[t]he multiplicity of tube elements also causes acoustic attenuation so that the sound
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`level at deployment is not nearly as great as the air bag type of protective device. In
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`other words, each tube element can be made to deploy at a slightly different rate causing
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`out-of-phase sound pressure fronts which will tend to cancel themselves out and the
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`space between each tube element helps to trap acoustic energies.
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`Col. 4, lines 50-57 of Graebe (emphasis added). Thus, in my opinion, one of ordinary skill in
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`the art, after reading Graebe, would have been persuaded to abandon using a single airbag and,
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`instead, to use a plurality of tube elements 40 to enhance acoustic attenuation and to trap
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`acoustic energies. See Col. 4, lines 50 and 57 of Graebe.
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`41.
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`In my opinion, one of ordinary skill in the art, upon reading Graebe (see, e.g.,
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`paragraphs 39 and 40 above), would be discouraged from following the path of using a single
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`air bag and instead would have be encouraged to use a multiplicity of tube elements 40 to reduce
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`the chances of injury, to enhance acoustic attenuation, and to trap acoustic energies.
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`42.
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`In my opinion, one of ordinary skill in the art, upon reading Graebe (see, e.g.,
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`paragraphs 39 and 40 above) would not use the tube element 40 system with any of the airbag
`systems of Kithil or Wilfert. I respectfully submit that Graebe teaches away from Kithil and/or
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`Wilfert.
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`43.
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`I respectfully submit that there is no disclosure in Kith.il that the airbag cover is
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`part of the ceiling of the vehicle.
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`44.
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`All statements made herein of my own knowledge are true, and all statements
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`made herein on information and belief are believed to be true. I have been advised that willful
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`false statements and the like so made may result in a fine or imprisonment under Title 18 United
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`States Code§ 1001, and may jeopardize the present reexamination or the validity of the present
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`patent
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`Date: August l, 2014
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`Louis R. Brown
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