Ex Parte Gale et al

Patent Trial and Appeal Board

Aug 21, 2013

11716152 (P.T.A.B. Aug. 21, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/716,152 03/09/2007 Allan R. Gale 81154641 5985
28866 7590 08/22/2013
MACMILLAN, SOBANSKI & TODD, LLC
ONE MARITIME PLAZA - FIFTH FLOOR
720 WATER STREET
TOLEDO, OH 43604
EXAMINER
FANTU, YALKEW
ART UNIT PAPER NUMBER
2859
MAIL DATE DELIVERY MODE
08/22/2013 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ALLAN R. GALE, MICHAEL W. DEGNER,
and MICHAEL A. TAMOR
____________

Appeal 2011-000485
Application 11/716,152
Technology Center 2800
____________

Before ELENI MANTIS MERCADER, ERIC B. CHEN, and
GREGG I. ANDERSON, Administrative Patent Judges.

ANDERSON, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1-17, all the claims pending in the application. We have
jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part and enter a new
ground of rejection pursuant to our authority under 37 C.F.R. § 41.50(b).

STATEMENT OF THE CASE
Appellants’ invention relates generally to a charging system for
storage batteries for plug-in hybrid electric vehicles (PHEV). More
specifically, the charging system detects other loads on the charging circuit
and reduces the current load for the PHEV storage battery, reducing or
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eliminating the possibility of a circuit breaker opening during charging.
Spec. pg. 2, ll. 12-19. Claim 1 is illustrative:
1. A method for charging an electric storage battery in a plug-in
hybrid electric vehicle through a power supply circuit, comprising the steps
of:
(a) coupling the charger to the circuit;
(b) determining whether another appliance in the circuit other than the
charger is drawing current;
(c) determining a maximum charge rate at which the battery can be
charged using the charger;
(d) charging the battery at the maximum charge rate if no other
appliance in the circuit is drawing current; and
(e) charging the battery at less than the maximum charge rate if
another appliance in the circuit is drawing current.

THE REJECTION
The Examiner rejected claims 1-17 under 35 U.S.C. § 103(a) as being
unpatentable over Hobbs (US 2004/0169489 A1, issued Sept. 2, 2004) in
view of Amano (US 2004/0155624 A1; published Aug. 12, 2004). Ans. 4-
8.1

ISSUES
(1) Under § 103, has the Examiner erred by finding that Hobbs and
Amano collectively would have taught or suggested:
(a) “charging the battery at the maximum charge rate if no other
appliance in the circuit is drawing current,” as recited in claim 1?
(b) “charging the battery at less than the maximum charge rate if
another appliance in the circuit is drawing current,” as recited in claim 1.

1 Throughout this opinion, we refer to (1) the Appeal Brief filed January 21,
2010 (“App. Br.”); (2) the Examiner’s Answer mailed April 27, 2010
(“Ans.”); and (3) the Reply Brief filed September 7, 2010 (“Reply Br.”).
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(2) Under § 103, has the Examiner erred by finding that Hobbs and
Amano collectively would have taught or suggested:
(a) “a charger is coupled to the circuit and a second outlet at which an
appliance other than the charger can be coupled to the circuit,” as recited in
claim 9?
(b) “first and second instruments for measuring circuit operating
variables that indicate whether an appliance in the circuit other than the
charger is drawing current,” as recited in claim 9?
(3) Under § 103, has the Examiner erred by finding that Hobbs and
Amano collectively would have taught or suggested:
(a) “determining whether a first voltage is present between the neutral
terminal and the ground terminal of the first outlet,” as recited in claim 2?
(b) “performing step (d) [of claim 1] if the first voltage is zero,” as
recited in claim 2?
(c) “performing step (e) [of claim 1] if the first voltage is not zero,”
as recited in claim 2?
(4) Under § 103, has the Examiner erred by finding that Hobbs and
Amano collectively would have taught or suggested “performing step (e) [of
claim 1] if a voltage difference between the first terminal and the second
terminal is greater than a reference voltage difference,” as recited in claim 3?
(5) Under § 103, has the Examiner erred by finding that Hobbs and
Amano collectively would have taught or suggested:
(a) “determining a length of a reference period during which the
battery can be charged before repeating step (b) [of claim1],” as recited in
claim 4?
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(b) “discontinuing the step of charging the battery when the reference
period expires,” as recited in claim 4?
(c) “repeating steps (b) through (e) [both of claim 1] after the
discontinuing step,” as recited in claim 4?
(6) Under § 103, has the Examiner erred by finding that Hobbs and
Amano collectively would have taught or suggested “current sensor to
determine a magnitude of current drawn by an appliance other than the
charger in the circuit,” as recited in claim 7?

ANALYSIS
Rejection of Claim 1under 35 U.S.C. § 103
The key disputed limitations of claim 1 recite, in pertinent part, “(d)
charging the battery at the maximum charge rate if no other appliance in the
circuit is drawing current; and (e) charging the battery at less than the
maximum charge rate if another appliance in the circuit is drawing current.”
Unless otherwise stated, we will reference them as the “maximum charge
rate” and “less than the maximum charge rate” limitations respectively.
The Examiner relies on Hobbs for all the limitations of claim 1 except
the two limitations in dispute. Ans. 6. Amano is cited for teaching these
limitations. Id. Specifically, the Examiner found that the automobile power
supply of Amano includes a control unit which distributes the electric load
based on the condition of the battery and the load. Id. The Examiner also
found that the current of the load is limited when said anticipated voltage is
smaller than a predetermined value. Id. (citing Amano ¶ [0010]). The
Examiner further found Amano teaches that where an excessive load is
generated, the voltage of the power supply system may drop significantly.
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Id. (citing Amano ¶ [0004]). As a result of the voltage drop, the controller
becomes inoperative and “the output of the electric load can not [sic] be
generated sufficiently.” Id.
Appellants assert the Amano power supply adjusts power to the loads
depending on a level of importance to the operation of the vehicle that each
the load represents. App. Br. 7. Appellants further note the current
produced by the electric generator is controlled such that a predetermined
minimum power supply system voltage (Vmin) is obtained. App. Br. 8.
Appellants further allege the Amano power supply is directed to delaying,
reducing or stopping current flow to electric loads when the battery voltage
is less than a minimum power supply system voltage. Id. For these reasons,
Appellants assert Amano does not teach or suggest the two disputed
limitations. Id. As such, Appellants conclude that, absent impermissible
hindsight, a prima facie case of obviousness has not been made. Id.
The fact that Amano is not a battery charging system is not persuasive
to overcome the Examiner’s rejection. Hobbs relates to a battery charger for
a vehicle. Hobbs, Abstract. In re Keller, 642 F.2d 413, 426 (CCPA 1981)
(“[O]ne cannot show non-obviousness by attacking references individually
where, as here, the rejections are based on combinations of references.”).
Appellants do not argue the combination is improper and the Examiner finds
Hobbs and Amano are in analogous arts. Ans. 6.
As the Examiner finds, Amano’s power supply and control unit adjust
the current to the various loads depending on the status of the load and
charge in the battery. Amano ¶ [0010]. The control unit of Amano’s power
supply adjusts the current to the loads on the system depending on whether
the available voltage is greater than a predetermined minimum voltage. Id.
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Amano teaches or suggests permitting a maximum charge rate if the load on
the entire system is not in excess of the predetermined voltage. If the
available voltage is less than the predetermined minimum voltage, then
current is distributed at less than the maximum charge rate. Figure 2 of
Amano further illustrates that both the battery and the load are monitored.
Amano, Fig. 2, elements 32 and 33. Amano deals with a power supply
system intended for distribution among various electrical loads of an
automobile, including the battery. Ans. 9. Thus, Amano teaches the
limitations “charging the battery at the maximum charge rate if no other
appliance in the circuit is drawing current” and “charging the battery at less
than the maximum charge rate if another appliance in the circuit is drawing
current.” We are not persuaded of any error on the part of the Examiner and
therefore sustain the rejection to claim 1.

Rejection of Claims 9 and 13 under 35 U.S.C. § 103
The first disputed limitation of claim 9 recites, in pertinent part, “a
charger is coupled to the circuit and a second outlet at which an appliance
other than the charger can be coupled to the circuit.”
The Examiner finds that Hobbs teaches the first disputed limitation.
Ans. 4, 10-11 (citing Hobbs, ¶ [0030], Fig. 2, elements 288, 130 and 110).
Specifically, the battery charging system of Hobbs teaches other loads, i.e.,
another “appliance,” applied to it, including diagnostic device 130, card
reader 110 and fan 288. Id. The Examiner also finds Hobbs teaches a power
supply cable 125 which supplies current to batteries 152 and other
appliances, such as a motor 155. Ans. 10. Amano also teaches multiple
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appliances in an electrical circuit. Id. (citing Amano, Fig. 1, elements 16 a-
c).
Appellants argue Hobbs does not show a second outlet with a
connected appliance. App. Br. 9. Rather, Appellants argue, Hobbs shows
“one charger and no additional appliance is connected to the power grid.”
Id. Per Appellants, Hobbs Figure 2 shows that the card reader 110,
diagnostic device 130 and fan 288 for cooling transformer 280 are
components of the charger 100. Reply Br. 2. Appellants find Amano lacks
the disputed element, pointing out that Amano teaches power supply and
battery which are “onboard.” App. Br. 9. Appellants again contend Amano
discloses nothing about a battery charger or charging a battery. Id.
Nothing in claim 9 limits the scope of “second outlet” or “appliance.”
The Specification has no definition for either term. The “second outlet” is
described generally as in the same circuit as the first outlet. Spec. 2.
“Appliance” is shown generally as part of the same circuit. Spec., Fig. 1,
element 36. Appellants acknowledge the charger of Hobbs is an
“appliance.” Reply Br. 2.
We therefore give both terms, “second outlet” and “appliance,” their
broadest reasonable interpretation. In re Am. Acad. Of Sci. Tech. Ctr., 367
F.3d 1359, 1364 (Fed. Cir. 2004). We therefore agree with the Examiner
that Hobbs Figure 2 does teach additional “appliances,” i.e., devices that
draw current, which are connected to a “second outlet,” i.e., a circuit to
which the battery is also connected. Appellants’ argument that the card
reader, diagnostic device and fan of Hobbs are a part of the charger 100 of
Hobbs Figure 2 is unpersuasive where the battery or vehicle 150 or 152 are
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part of the entire circuit disclosed, all of which are referenced very generally
as the “charger 100.”
Further, nothing in claim 9 limits the connection of the appliance to
the “power grid,” as Appellants argue. App. Br. 9. The circuit of the
charger and the vehicle of Hobbs or Amano are within the claim scope.
There is also no claim language requiring that loads, i.e., appliances, must be
“onboard,” as Appellants suggest. Reply Br. 9. See In re Self, 671 F.2d
1344, 1348 (CCPA 1982) (arguments to alleged limitations not recited in the
claim are disregarded).
The second disputed limitation of claim 9 recites, in pertinent part,
“first and second instruments for measuring circuit operating variables that
indicate whether an appliance in the circuit other than the charger is drawing
current.”
The Examiner finds the Hobbs charger 100, which includes a
controller, and the diagnostic device 130 are configured to measure circuit
operating variables such as voltage and current. Ans. 10-11 (citing Hobbs, ¶
[0013], Fig. 1). The Examiner finds it is common knowledge electric
vehicles require measurement of current and voltage to distribute power. Id.
Finally, Amano also discloses instruments for measurement of voltage and
current. Id. (citing Amano, ¶¶ [0017], [0022], Fig. 1, elements 21-23).
Appellants again argue the elements cited by the Examiner in Hobbs
are “onboard.” Reply Br. 2. Appellants also contend the only appliance of
Hobbs for which measurements are made is the charger 100. Id.
We agree with the Examiner’s findings. The “onboard” argument was
previously addressed. The charger 100 of Figure 1 includes several
electrical components. Measurements of the “charger” would necessarily
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include other “appliances” as already discussed. Appellants do not respond
to the Examiner’s additional finding that taking the measurements claimed is
common knowledge to one of ordinary skill in the art. We therefore sustain
the rejection to claim 9 and to claim 13, which is not separately argued.

Rejection of Claims 14 and 17 under 35 U.S.C. § 103
Claim 14 includes the same language as claim 9 relative to the
“second outlet” and “appliances.” Claim 14 also recites as an element “an
instrument for measuring current drawn by an appliance.” The language is
virtually the same as the second disputed element of claim 9. However,
Appellants make no distinction between the two in their arguments. The
arguments relative to claim 14 are virtually identical to those made with
respect to claim 9. App. Br. 9-10, Reply Br. 3. The rejection of claim 14 is
therefore sustained for reasons set forth in connection with claim 9.
Claim 17 is not argued in Appellants’ Brief. Claim 17 is separately
argued in the Reply Brief. Reply Br. 3. There is no showing good cause,
the arguments are untimely and will not be considered. By not presenting
separate arguments thereto in their original Brief, the Appellants elected to
have claim 17 stand or fall with claim 14. See 37 C.F.R. § 1.192(c)(7)
(2003). The rejection of claim 17 is therefore sustained.

Rejection of Claim 2 under 35 U.S.C. § 103
The first disputed limitation of claim 2 recites, in pertinent part,
“determining whether a first voltage is present between the neutral terminal
and the ground terminal of the first outlet.”
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The Examiner finds Hobbs teaches three phase wires includes neutral
with ground for and a ground terminal that is connected mutually at a second
terminal. Ans. 7 (citing Hobbs, ¶ [0032]). The Examiner relies on the same
section of Hobbs for the disputed limitation. Id.
Appellants argue Hobbs does not disclose the determining step in
dispute. App. Br. 11. Appellants’ Reply Brief does not address the
limitation.
Merely pointing out what claim 2 recites and then asserting Hobbs
does not teach the limitation is not considered a separate argument for
patentability. See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011). We
are not persuaded the Examiner’s rejection is in error based on the first
disputed element of claim 2.
The second disputed limitation of claim 2 recites, in pertinent part,
“performing step (d) [of claim 1] if the first voltage is zero.”
The Examiner cites to Hobbs paragraph 9 to teach maximum charge
rate as recited in the second disputed limitation. Ans. 7. The Examiner also
relies on Amano paragraph [0010] for distribution voltage depending on the
load as discussed above. Id. Finally, the Examiner cites to Amano
paragraph [0034] to show that maximum power goes to the battery when the
load current is zero.
Appellants respond that Hobbs discloses checking whether the battery
takes a charge and completes its charge, but does not mention the second
disputed limitation. App. Br. 11. Appellants do not address Amano.
The cited portion of Hobbs does teach “a method for charging
batteries that can be used reliably to charge batteries at or near the optimal or
maximum rate.” Hobbs thus teaches charging at a maximum rate. As
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already discussed, Amano teaches relative voltage and current distribution in
the circuit. Amano, ¶ [0010]. Related directly to what the Examiner relies
on, Amano also teaches measuring the current values of all the electric loads
and monitoring the battery. Amano, ¶ [0033]. As the Examiner finds, the
total load current plus the battery current is equal to the electric generator
current. Amano, ¶ [0035]. If the load current goes to zero, the battery
receives all the current, voltage. Given these findings by the Examiner,
many of which are not contested by Appellants, we are not persuaded of any
Examiner error in finding the references show the second disputed limitation
of claim 2.
The third disputed limitation of claim 2 recites, in pertinent part,
“performing step (e) [of claim 1] if the first voltage is not zero.”
The Examiner mistakenly cites to Hobbs ¶ [0028], which is clearly not
applicable.2 Ans. 7. Appellants’ argument notes this error and the rejection
of claim 2 on the specific grounds cited by the Examiner is not sustained.

Rejection of Claim 3 under 35 U.S.C. § 103
Claim 3 is virtually identical in scope to claim 2 with the exception of
the following language which recites, in pertinent part, “performing step (e)
[of claim 1] if a voltage difference between the first terminal and the second
terminal is greater than a reference voltage difference.” The italicized
language highlights the difference between the two claims.

2 The Examiner appears to have intended to cite to paragraph [0028] of
Amano. This requires us to enter a new ground for rejection below.
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The Examiner advances the same grounds for rejection as claim 2.
Appellants make all but identical arguments to those made in connection
with claim 2 in response.
The Examiner does not cite to either Hobbs or Amano for teaching
use of a “reference voltage difference” as a basis to charge at less than the
maximum rate. The Examiner has therefore failed to make a prima facie
case of obviousness.
The rejection of claim 3 on the specified grounds is not sustained. A
new ground of rejection is entered as below.

Rejection of Claim 11 under 35 U.S.C. § 103
Claim 11 is a system claim dependent on claim 9, for which we
sustained the Examiner’s rejection. Claim 11 is very similar in scope to
claim 2 and the Examiner relies on the same grounds of rejection. Ans. 6-7.
Appellants make arguments already advanced and found not persuasive in
connection with claims 9 and 2. App. Br. 13-14.
The rejection of claim 11 is sustained for reasons previously stated in
connection with claims 9 and 2.

Rejection of Claims 4, 5, 6, 12, and 16 under 35 U.S.C. § 103
The first disputed limitation of claim 4 recites, in pertinent part,
“determining a length of a reference period during which the battery can be
charged before repeating step (b) [of claim1].”
The Examiner finds that Hobbs teaches the first disputed limitation.
Ans. 7 (citing Hobbs, ¶ [0051]). The Examiner relies on the controller 270
which uses data from memo and look-up table for all charging activities. Id.
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Further, the Examiner finds Amano teaches monitoring the battery condition
for a period of time to charge or not charge. Ans. 12 (citing Amano, ¶¶
[0033]-[0034]).
Appellants contend the cited portion of Hobbs lacks any reference to
charging the battery while the reference period is unexpired. App. Br. 14.
According to paragraph 51 of Hobbs, the “charger 100” may have
look-up tables. In rejecting claim 4 the Examiner also cites to Hobbs
paragraph 52, which further discusses the look-up table cited. Ans. 7. The
look-up table includes battery information, including a “threshold current” at
which charging should be stopped.
The Specification does not define “reference period,” other than
correlating it to a length of time. Spec. 3, ll. 3-6. Hobbs’ controller
accessing the look-up table for battery status suggests a length of time is
involved. Both Hobbs and Amano monitor the battery condition and Amano
monitors the loads as well. The teachings suggest a time element to
charging. Appellants’ arguments do not persuade us otherwise.
The second disputed limitation of claim 4 recites, in pertinent part,
“discontinuing the step of charging the battery when the reference period
expires.”
The Examiner finds the second disputed limitation in paragraph 52 of
Hobbs. Ans. 7-8.
Appellants argue the cited portion does not show discontinuing
charging upon expiration of the reference period. App. Br. 14.
A person of ordinary skill would, based on Hobbs monitoring of
battery condition, cease charging. Appellants’ argument does not persuade
us otherwise.
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The third disputed limitation of claim 4 recites, in pertinent part,
“repeating steps (b) through (e) [both of claim 1] after the discontinuing
step.”
The Examiner cites to Hobbs as teaching “repeatedly” determining
and comparing the state of charge and continuing to charge until the battery
is charged. Ans. 7 (citing Hobbs, Fig. 3, elements 308 and 315).
Appellants again assert there is no specific teaching of this limitation.
App. Br. 14.
Hobbs’ Figure 3 shows feedback loops which repeat based on the
state of battery charge. Appellants do not respond to the Examiner’s finding
and we are not persuaded to find otherwise.
The rejection of claim 4 is sustained.
Claim 5 depends on claim 1 and claim 6 depends on claim 5.
Appellants make the same arguments for patentability of claim 5 as were
made for claim 4. Claim 6 recites the third limitation of claim 4 and
Appellants argue the limitation is not present. We have already decided the
limitation is taught by the cited prior art.
Claim 12 is a system claim dependent on claim 9. Claim 16 is a
system claim dependent on rejected claim 14. Claims 12 and 16 mirror the
limitations of claim 4. The arguments made are the same as made for claim
4, which were not persuasive.
The rejection of claims 5, 6, 12, and 16 is sustained for reasons
already stated in connection with claims 1, 14, and 4.

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Rejection of Claim 7 under 35 U.S.C. § 103
Claim 7 depends on claim 1 and tracks claim 2 with the exception of
using a “current sensor to determine a magnitude of current drawn by an
appliance other than the charger in the circuit.” Claim 2 determines voltage,
rather than a current.3 Other than switching current for voltage, claim 7 is
all but identical to claim 2. Accordingly, the issue presented is whether a
current sensor is taught by the references.
Accordingly, the Examiner cites to Amano for teaching a current
sensor for indicating a magnitude of current in the circuit. Ans. 8 (citing
Amano, ¶ [0010]). Amano, per the Examiner, uses the current sensor to
determine a magnitude of current drawn by an appliance other than the
charger. Id. Amano also teaches maximum charging (claim 1 step (d)) if
the current sensor indicates that no current is being drawn in the circuit by
an appliance other than the charger. Id. (citing Amano, ¶¶ [0033]-[0035]).
Less than maximum charging (claim 1 step (e)) occurs if the current sensor
indicates that current is being drawn in the circuit by an appliance other than
the charger. Id. (citing Amano, ¶ [0016]).
In connection with the issue presented, Appellants argue neither
Hobbs nor Amano teach an instrument for measuring current. App. Br. 18.
Amano teaches sensing the “operative condition of said electric load.”
Amano, ¶ [0010]. Furthermore, the “current of the electric load is limited”
when the supply voltage drops below a predetermined value. Id. We agree
with the Examiner that sensing current is taught by Amano, and the other

3 Ohm’s Law, voltage equals current times resistance (V=IR), establishes a
direct relationship between voltage and current.
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aspects of claim 7 have been previously addressed in our discussion of
claims 1 and 3.
The rejection of claim 7 is sustained.

Rejection of Claim 8 under 35 U.S.C. § 103
We agree with Appellants that the rejection to claim 8 does not give
adequate notice of the rejection made. The rejection of claim 8 is not
sustained. A new ground of rejection is entered.

Rejection of Claims 10 and 15 under 35 U.S.C. § 103

Appellants argue claims 10 and 15 are patentable for the reasons
claims 7 and 1 are argued as patentable. App. Br. 19-20. The rejections to
claims 7 and 1 have been sustained and the rejection of claim 10 is likewise
sustained.

NEW GROUND OF REJECTION UNDER 37 C.F.R. § 41.50(b)
We enter the following new ground of rejection:
Claims 2, 3, and 8 are rejected under 35 U.S.C. § 103 as obvious
over Hobbs and Amano.

Rejection of Claim 2 under 35 U.S.C. § 103
The findings of the Examiner as above in connection with the first and
second disputed limitations are incorporated herein as though fully set forth.
With respect to the third disputed limitation, “performing step (e) [of claim
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1] if the first voltage is not zero,” new grounds for rejection are set out
below.
Amano teaches determining the battery voltage. Amano, ¶ [0028].
The voltage changes according to the increase in the electric load. Amano, ¶
[0029]-[0030]. “The power supply voltage expecting part 35 expects the
voltage drop in accordance with the expectation value of the load current
and the battery condition, and the load control commanding part 39 has a
task for preventing the voltage drop by limiting beforehand the operation of
the load according to need.” Amano, ¶ [0031]. In other words, Amano
teaches that, when the supply voltage drops, the charger supplies less current
to the load “according to need,” as per the third disputed limitation.
Appellants make several other arguments for patentability of claim 2.
App. Br. 11. The same or similar arguments were made in connection with
claim 1 or claim 9 as already addressed above. Appellants do not draw our
attention to any claim language that would cause us to supplement our
analysis. For reasons already stated, those arguments are not persuasive.
Claim 2 is rejected on the grounds set forth above and the new
grounds set forth here.

Rejection of Claim 3 under 35 U.S.C. § 103
The third disputed limitation of claim 3 is performing step (e) [of
claim 1] if a voltage difference between the first terminal and the second
terminal is greater than a reference voltage difference.” The disputed
limitation is taught by Hobbs and Amano as discussed in the new grounds of
rejection of claim 2 with the exception of a voltage difference between the
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first and second terminal being greater than “a reference voltage difference.”
Claim 2 required the voltage be a value greater than zero as analyzed above.
Amano teaches use of a reference voltage (Vb), the terminal voltage of
the battery. Amano, ¶ [0028]. For reasons set forth in the rejection of claim
2, Hobbs and Amano teach charging of the battery at less than maximum
charge rate based on the voltage difference in the circuit falling below some
value greater than zero. The selection of an arbitrary reference voltage in
that range is within the level of the person of ordinary skill in the art.
Claim 3 is rejected on the grounds set forth above and the new
grounds set forth here.

Rejection of Claim 8 under 35 U.S.C. § 103
Claim 8 depends on claim 1 and tracks claim 3 with the exception of
periodically determining a “reference state of charge” rather than
determining a reference voltage as was recited in claim 3.
We begin by construing “reference state of charge.” The
Specification states only that the state of charge the battery is determined
and, if the battery is not charged above a reference charge, charging
continues. Spec. 3, 7-11. Conversely, if the reference charge is exceeded,
charging continues. Id. There is no definition of the term provided. We
construe state of charge to be the voltage of the battery. Simply stated,
claim 8 charges the battery if the voltage is low. Hobbs Figure 3 shows
charging a hybrid electric vehicle battery if the battery charge or voltage is
low. “If the voltage measurement (from step 308) fits within a defined range
of voltages of battery packs or batteries, (as determined for example, in
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decision step 310), then charger 100 may proceed to start charging (step
315) the battery or batteries (e.g., batteries 152).” Hobbs, ¶ [0079].
Claim 8 rejected on the grounds set forth above and the new grounds set
forth here.

ORDER
The decision of the Examiner to reject claims 1, 4-7, and 9-17 is
affirmed.
We enter a new ground of rejection for claims 2, 3, and 8 under
35 U.S.C. § 103.
This decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 41.50(b). Section 41.50(b) provides that “[a] new ground of rejection . . .
shall not be considered final for judicial review.”
Section 41.50(b) also provides that Appellants, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate amendment of the
claims so rejected or new evidence relating to the claims so rejected, or both,
and have the matter reconsidered by the examiner, in which event the
proceeding will be remanded to the examiner. . . .

(2) Request rehearing. Request that the proceeding be reheard under
§ 41.52 by the Board upon the same record.

Appeal 2011-000485
Application 11/716,152

20

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) (2010).

AFFIRMED-IN-PART
37 C.F.R. § 41.50(b)

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