Bernard D. Nefcy et al.

Patent Trials and Appeals Board

Jul 17, 2019

12712695 - (D) (P.T.A.B. Jul. 17, 2019)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/712,695 02/25/2010 Bernard D. Nefcy 81196271 3228
28395 7590 07/17/2019
BROOKS KUSHMAN P.C./FGTL
1000 TOWN CENTER
22ND FLOOR
SOUTHFIELD, MI 48075-1238
EXAMINER
HAMILTON, FRANCES F
ART UNIT PAPER NUMBER
3762
NOTIFICATION DATE DELIVERY MODE
07/17/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
docketing@brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte BERNARD D. NEFCY, DEREK HARTL,
CHRISTOPHER ADAM OCHOCINSKI, and WILLIAM PAUL PERKINS
____________

Appeal 2017-011484
Application 12/712,6951
Technology Center 3700
____________

Before LINDA E. HORNER, BENJAMIN D. M. WOOD, and
ERIC C. JESCHKE, Administrative Patent Judges.

JESCHKE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Bernard D. Nefcy et al. (“Appellants”) seek review under 35 U.S.C.
§ 134(a) of the Examiner’s decision, as set forth in the Final Office Action
dated October 20, 2016, rejecting claims 1, 3, 8–13, and 17–19. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 Appellants identify Ford Global Technologies, LLC as the real party
in interest. Appeal Br. 2.
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BACKGROUND
The disclosed subject matter relates to a climate control system of an
automobile. Spec., Title. Claims 1, 3, and 13 are independent. Claim 1 is
reproduced below, reformatted from the version provided, and with
emphasis added:
1. A vehicle comprising:
a cabin climate system configured to move
air from outside the vehicle to a cabin of the vehicle;
a traction battery climate system configured
to move air from the cabin over a traction battery of
the vehicle; and
at least one controller configured to
(i) in response to a request to activate
the cabin climate system and traction battery
climate system while the vehicle is in a non-
propulsion mode, activate the cabin climate
system and traction battery climate system to
move air through the cabin and over the
traction battery and
(ii) in response to expiration of a
predetermined period of time initiated with
activation of the cabin climate system and
traction battery climate system and during
which the vehicle does not enter a propulsion
mode, deactivate at least one of the cabin
climate system and traction battery climate
system.

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EVIDENCE RELIED ON BY THE EXAMINER
Major US 2009/0071178 A1 Mar. 19, 2009
Tarnowsky US 8,039,988 B2 Oct. 18, 2011
Tanaka Translation of JP 2001-063347 A2 Mar. 13, 2001

REJECTIONS
1. Claims 1, 3, 8–10, 12, 13, and 17–19 stand rejected under
35 U.S.C. § 103(a) as unpatentable over Major and Tanaka.
2. Claim 11 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Major, Tanaka, and Tarnowsky.

DISCUSSION
Rejection 1 – Claims 1, 3, 8–10, 12, 13, and 17–19
Appellants argue the patentability of the three independent claims in
this rejection—claims 1, 3, and 13—based on the same arguments and do
not provide separate arguments for any dependent claims. Appeal Br. 3–4.
We select independent claim 1 as representative, with the remaining claims
standing or falling with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv) (2016).
For claim 1, the Examiner relied on Major for certain limitations but
stated that Major lacks the requirements of the final clause of claim 1
(beginning with “(ii)”). Final Act. 5 (¶ 13). The Examiner found, however,

2 Tanaka is a 49-page document identified as an “official USPTO
translation” of Japanese Publication No. 2001-063347 A. Ans. 11. Tanaka
was entered into the file history on April 18, 2016. In the Office Action, the
Examiner mistakenly identifies Tanaka as a translation of “JP 2003
063347 A.” Final Act. 2 (emphasis added); cf. Notice of References Cited,
entered Apr. 18, 2016 (listing “JP 2001063347 A” (emphasis added)).
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that Tanaka teaches these requirements. Id. (¶ 14). The Examiner provided
a reason to combine the teachings of Major and Tanaka. Id. (¶ 15).
Appellants argue that, contrary to the Examiner’s findings, Tanaka
does not disclose a controller configured to deactivate a cabin climate
system and traction battery climate system “in response to expiration of a
predetermined period of time initiated with activation of the cabin climate
system and traction battery climate system.” Appeal Br., Claim App. 1
(emphasis added); Appeal Br. 3 (stating that Tanaka “does not suggest, in
response to expiration of a predetermined period of time initiated with
activation of the climate system and during which the vehicle does not enter
a propulsion mode, deactivating the climate system”). Instead, as described
in further detail below, Appellants argue that the identified “predetermined
period of time” in Tanaka is initiated after “activation” of the climate
systems. We first provide a background of the relevant undisputed teachings
of Tanaka and then address the positions of Appellants and the Examiner as
to the issues in dispute.
The Examiner finds, and Appellants do not dispute, that Tanaka
teaches an air conditioning control system for a vehicle in which, “when a
pre-air-conditioning request switch (72) is on, power from an external power
source (75) that is charging a secondary battery (73) is used to operate . . . a
pre-air conditioner (1) so that the vehicle interior is preliminarily cooled or
heated during the charging operation.” Final Act. 5 (¶ 14) (citing, e.g.,
Tanaka ¶ 50); see also Tanaka Fig. 1 (showing identified structures). This
process of operating pre-air-conditioning device 1 in Tanaka using external
power is reflected in step S6 of Figure 4. See Tanaka 42 (“S6: Operate the
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pre-air-conditioning device (power supply from the external power
source).”). The record supports these findings by the Examiner.
The record also supports the Examiner’s undisputed findings that
Tanaka then teaches (as step S7) disconnecting external power source 753
and (as step S8) operating pre-air-conditioning device 1 using secondary
battery 734. As the “predetermined period of time” in claim 1, the Examiner
relies (for example) on Tanaka’s teaching that, upon switching to battery
power, the pre-air-conditioning device operates “until a prescribed time
elapses.” Tanaka ¶ 58 (cited at Final Act. 5 (¶ 14) (stating that “[t]he pre-
air-conditioning continues until the elapsed time reaches the pre-air-
condition operation request time”); see also Tanaka ¶ 57 (discussing how “at
the time of disconnecting the charging plug in step (S7), . . . the pre-air-
conditioning device (1) may be operated in step (S8) until a prescribed time
(for example, 5 minutes) elapses”). In other words, the “prescribed period of
time” identified by the Examiner is initiated when the system in Tanaka

3 See Final Act. 5 (¶ 14) (discussing “the removal of the external
power source (75) from the vehicle after the charging operation of the
secondary battery (73)”) (citing, e.g., Tanaka ¶ 56); Tanaka ¶ 56 (discussing
Figure 4 and how, “if the charging plug is disconnected from the vehicle
(step S7)), the processing moves onto step (S8)”); see also Tanaka, pg. 42
(“S7: Stop the power supply from the external power source (disconnect the
charging plug)”).
4 See Final Act. 5 (¶ 14) (discussing how “power from the secondary
battery (73) is used to continue operating . . . the pre-air conditioner (1) so
that the vehicle interior is cooled or heated preliminarily even after the
disconnection of the external power source (75)”) (citing, e.g., Tanaka ¶ 57);
Tanaka ¶ 57 (discussing how the power supply for pre-air-conditioning
device 1 is “switched from the external power source (75) to the secondary
battery (73); see also Tanaka, pg. 42 (“S8: Operate the pre-air-conditioning
device for a prescribed time (power supply from the secondary battery)”).
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switches from external power to battery power to operate the pre-air-
conditioning device. See Ans. 12 (“Tanaka is clear that the power source is
changed, and then the pre-air conditioning device is operated until a
prescribed time elapses.”).
With that background, we turn to the specifics of Appellants’
arguments. Appellants do not dispute that Tanaka discloses deactivating its
climate system “in response to expiration of a predetermined period of
time”—i.e., the “prescribed period of time” in Tanaka that begins when the
system switches from external power to battery power to operate the pre-air-
conditioning device. Instead, Appellants contend that the identified
“prescribed period of time” is not “initiated with activation” of the climate
system as required because the pre-air-conditioning device was already
activated when operation began under external power. Appeal Br. 3
(arguing that “Tanaka’s prescribed period of time is initiated with the switch
from external power source (75) to secondary battery (73)—not with
activation of pre-air-conditioning device (1)”).
The Examiner takes the positions that (1) when the system in Tanaka
switches from external power to battery power, the pre-air-conditioning
device is stopped and restarted, (2) that this alleged restart is an “activation”
as recited in the limitation at issue, and (3) that this alleged restart occurs at
the same time as initiation of the identified “predetermined period of time.”
See Final Act. 5 (¶ 14); Ans. 13 (“The examiner respectfully maintains that
the pre-air conditioning system stops and restarts with the change in power
source; the predetermined period of time is initiated with activation of the
pre-air conditioning system as powered by the secondary battery.”).
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Appellants do not dispute the second and third positions above. For the
reasons discussed below, the record supports the Examiner’s first position.
As noted by the Examiner, claim 11 in Tanaka adds the limitation
“when the external power source is disconnected, [the] air-conditioning
control means instantaneously stops the operation of the pre-air-conditioning
device and, immediately after that, restarts the pre-air-conditioning device
by using the power supplied from the secondary battery.” Tanaka, pg. 4–5
(claim 11) (emphasis added); Ans. 10 (“Lastly, the control system of Tanaka
instantaneously stops the operation of the pre-air-conditioning device and,
immediately after that, restarts the pre-air-conditioning device by using the
power supplied from the secondary battery (Tanaka Claim 11).”). Similarly,
in the first sentence of paragraph 15, Tanaka discusses claim 11 and states
that “when the external power source is disconnected, the operation of the
pre-air-conditioning device is instantaneously stopped and, immediately
after that, the pre-air-conditioning device is restarted by using the power
supplied from the secondary battery.” Tanaka ¶ 15 (emphasis added).
Appellants highlight the second sentence of paragraph 15, which
provides (with emphasis added by Appellants): “In this way, even when the
external power source is disconnected from the vehicle, the power is
immediately supplied from the secondary battery and the pre-air-
conditioning device is continuously operated until a prescribed time
elapses.” Appeal Br. 4 (quoting Tanaka ¶ 15, with emphasis added).
According to Appellant, this second sentence shows that “the power source
for the pre-air-conditioning device is switched from the external power
source to the secondary battery without interruption of pre-air-conditioning
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device operation” or, “[p]ut a different way, Tanaka does not stop and restart
its pre-air-conditioning device when switching power sources.” Id.
The preponderance of the evidence supports the Examiner’s positions.
As noted by the Examiner, the first sentence in paragraph 15 clearly states
that the pre-air-conditioning device is “stopped” and “restarted” at the
relevant point in time. See Ans. 11 (stating that, in paragraph 15, “Tanaka is
clear that that the device is stopped and re-started, without ambiguity”). As
also noted by the Examiner, the term “immediately” highlighted by
Appellants (and the term “instantaneously” in paragraph 15) are relative
terms. See id. As to the term “continuously” highlighted by Appellants, we
view that, in context, as referring to the continuous operation of the pre-air-
conditioning device from when power is supplied by the battery through the
end of the prescribed time. See Tanaka ¶ 15. We do not view
“continuously” as referring to the continuous operation of the pre-air-
conditioning device from when power is supplied by external power through
the end of the prescribed time.
Appellants also highlight portions of paragraph 57 of Tanaka, which
described step S8 of Figure 4: “Then, the power supply source for the pre-
air-conditioning device (1) is instantaneously switched from the external
power source (75) to the secondary battery (73) and the pre-air-conditioning
device (1) is operated until a prescribed time (for example, 5 minutes)
elapses . . . .” Appeal Br. 3 (quoting Tanaka ¶ 57, with emphasis added by
Appellants); see also Reply Br. 2 (discussing the same sentence from
Tanaka). This disclosure is similar to the second sentence of paragraph 15.
For the same reasons discussed above, we do not view this statement as
undermining the clear statements in the first sentence of paragraph 15 as to
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the Examiner’s findings that the pre-air-conditioning device in Tanaka stops
and restarts when switching from external power to battery power.
Next, Appellants argue that the Examiner’s position that the pre-air-
conditioning device in Tanaka stops and restarts when switching from
external power to battery power “does not seem likely from a practical
standpoint.” Appeal Br. 3–4. In support, Appellants state: “When a laptop
computer is unplugged for example, it does not shut off and then restart as
the power source is switched from the wall plug to the battery.” Id. at 4.
As an initial matter, Appellants provide no evidence—only attorney
argument—in support of this contention. See In re Pearson, 494 F.2d 1399,
1405 (CCPA 1974) (“Attorney’s argument in a brief cannot take the place of
evidence.”); see also Reply Br. 2 (providing no support for the statement
that “to the extent devices that can be plugged-in also provide battery power
back-up when un-plugged, such devices do not shut off and then turn back
on when un-plugged”). Moreover, even assuming Appellants’ contention is
correct, Appellants have not demonstrated the relevance of the operation of
laptop computers to the systems at issue here. See Ans. 14 (“Although not
germane to the appealed claims, Appellants’ analogy to . . . laptop
computers is misplaced.”).
Appellants also argue that “the [E]xaminer’s misunderstanding of
Tanaka springs from issues introduced by the translation process—not from
the actual teachings of Tanaka.” Appeal Br. 4. The Examiner responds that
the record contains “an official USPTO translation of the Tanaka reference,
translated by Schreiber Translations, Inc. (March 2016).” Ans. 11; see supra
n.2 (providing further information as to Tanaka). According to the
Examiner, “no issues were introduced by the translation process, and
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Appellants did not provide a translation of their own, by an independent
source to prove otherwise.” Ans. 11.
We are not apprised of error based on this argument because
Appellants merely state that the translation process created “issues” but
Appellants do not explain the alleged issues. See 37 C.F.R. § 41.37(c)(1)(iv)
(“The arguments shall explain why the examiner erred as to each ground of
rejection contested by appellant.”); see also Ex parte Frye, 94 USPQ2d
1072, 1075 (BPAI 2010) (precedential) (“An appellant may attempt to
overcome an examiner’s obviousness rejection on appeal to the Board by
submitting arguments and/or evidence to show that the examiner made an
error . . . .” (emphasis added)).
For the reasons above, we sustain the rejection of independent claim
1. Claims 3, 8–10, 12, 13, and 17–19 fall with claim 1.
Rejection 2 – Claim 11
Claim 11 depends from claim 1. See Appeal Br., Claims App. 2.
Appellants argue that claim 11 is allowable based on its dependence from
claim 3. See Appeal Br. 4. Appellants do not provide additional arguments
for claim 11. For the reasons above, we are not apprised of error in the
rejection of claim 3. See supra Rejection 1. As such, we sustain the
rejection of claim 11.

DECISION
We affirm the decision to reject claims 1, 3, 8–13, and 17–19 under
35 U.S.C. § 103(a).
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R.
§ 1.136(a)(1)(iv); 37 C.F.R. § 41.50(f).

AFFIRMED