Ex Parte Gauthier et al

Patent Trial and Appeal Board

Nov 17, 2016

12329061 (P.T.A.B. Nov. 17, 2016)

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.
12/329,061 12/05/2008 Greg Edward Gauthier 81150934 8086
28395 7590 11/21/2016
RROOKS KTTSHMAN P C /FfTET EXAMINER
1000 TOWN CENTER PATEL, SHARDUL D
22ND FLOOR
SOUTHFIELD, MI 48075-1238 ART UNIT PAPER NUMBER
3662
NOTIFICATION DATE DELIVERY MODE
11/21/2016 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 GREG EDWARD GAUTHIER and JOHN PROIETTY
Appeal 2014-008545
Application 12/329,061
Technology Center 3600
Before GEORGE R. HOSKINS, AMANDA F. WIEKER, and
ARTHUR M. PESLAK, Administrative Patent Judges.
HOSKINS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Greg Edward Gauthier and John Proietty (“Appellants”)1 appeal under
35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1—6, 8, 9, 11,
13, 14, and 16—20 in this application. The Board has jurisdiction over the
appeal under 35 U.S.C. § 6(b).
We REVERSE.
1 The Appeal Brief identifies “Ford Motor Company ... [a] wholly owned
subsidiary of Ford Motor Company” as the real party in interest. Br. 1. The
Appeal Brief additionally refers to an assignment recorded with the Office,
which identifies Ford Global Technologies, LLC as the assignee. Id.',
Reel 021931 / Frame 0354.
Appeal 2014-008545
Application 12/329,061
CLAIMED SUBJECT MATTER
Claims 1, 3, 8, and 16 are independent. Although there are significant
differences among the independent claims, claim 1 generally illustrates the
subject matter on appeal, and it recites:
1. A method for controlling torque delivery to vehicle
traction wheels in a hybrid electric vehicle, comprising:
controlling vehicle wheel torque while operating in a
limited operating mode in response to a vehicle sensor signal
anomaly based on a vehicle speed, acceleration rate, an
estimated vehicle wheel torque, and an acceleration rate to
wheel torque conversion factor.
Br. Claims App. 1.
REJECTIONS ON APPEAL
Claim 1 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Yoshimura (US 2006/0015231 Al, pub. Jan. 19, 2006) and Hrovat
(US 5,751,579, iss. May 12, 1998).
Claim 2 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Yoshimura, Hrovat, and Murray (US 2007/0050118 Al, pub. Mar. 1, 2007).
Claim 13 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Yoshimura, Hrovat, and Ohmori (US 2009/0018739 Al, pub. Jan. 15,
2009).
Claims 3 and 6 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Hrovat, Aitchison (US 2009/0063028 Al, pub. Mar. 5,
2009), and Thacher (US 2007/0051554 Al, pub. Mar. 8, 2007).
Claims 4 and 5 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Hrovat, Aitchison, Thacher, and Murphy (US 6,036,285,
iss. Mar. 14, 2000).
2
Appeal 2014-008545
Application 12/329,061
Claim 14 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Hrovat, Aitchison, Thacher, and Ohmori.
Claims 8 and 11 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Kuang (US 2006/0021811 Al, pub. Feb. 2, 2006), Hrovat,
and Aitchison.
Claims 9 and 11 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Kuang, Hrovat, Aitchison, and Murphy.2
Claims 16 and 18 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Staub (US 2009/0203496 Al, pub. Aug. 13, 2009) and
Ueoka (US 2010/0076661 Al, pub. Mar. 25, 2010).
Claim 17 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Staub, Ueoka, and Murphy.
Claim 19 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Staub, Ueoka, and Aitchison.
Claim 20 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Staub, Ueoka, and Mistry (US 6,381,529 Bl, iss. Apr. 30, 2002).
ANALYSIS
A. Obviousness over Yoshimura and Hrovat—Claim 1
In rejecting claim 1, the Examiner initially finds Yoshimura discloses
each and every limitation of claim 1—that is, Yoshimura anticipates the
claim. Final Act. 5 (citing Yoshimura, Abstract, || 38-42). The Examiner
then states “Yoshimura might not explicitly disclose” controlling wheel
2 The Examiner rejects claim 11 twice, once over Kuang, Hrovat, and
Aitchison (Final Act. 10—11), and once over those references in further
combination with Murphy {id. at 13).
3
Appeal 2014-008545
Application 12/329,061
torque based on all four variables recited in claim 1. Id. The Examiner
finds, “[i]f [that] interpretation [of Yoshimura] is taken,” Hrovat discloses
such control. Id. (citing Hrovat, Abstract, Fig. 1, 4:42—60); see also id. at 3.
The Examiner then determines it would have been obvious to modify
Yoshimura to include such control as taught by Hrovat, “to process input
signal values to produce the desired applied wheel torque values.” Id. at 5
(citing Hrovat, 2:10-11).
We, first, determine the Examiner errs in finding Yoshimura’s
Abstract and paragraphs 38-42 disclose, as recited in claim 1, controlling
vehicle torque “based on a vehicle speed, acceleration rate, an estimated
vehicle wheel torque, and an acceleration rate to wheel torque conversion
factor.” Br. Claims App. 1 (emphasis added). Yoshimura’s Abstract
pertinently discloses “taking in sensor signals indicating a status variable of
a vehicle and an operation amount applied from a driver, a command
controller for generating a control target value based on the sensor
signals . . ., and an actuator controller for receiving the control target value
from the command controller and operating an actuator to control the
vehicle” (emphases added). Yoshimura’s paragraphs 38-42 pertinently
disclose “driver’s demand detecting sensors” (138) and “actuator driving
nodes ha[ving] a function of generating an operation amount command
value based on the signals from the driver’s demand detecting sensors”
(141) (emphases added).
Our consideration of these disclosures indicates they have little
relationship to the four variables recited in claim 1. Further, to the extent
there is any such relationship, the Examiner does not explain what it might
be. See Final Act. 2—3, 5; Ans. 2—5. Thus, in this regard, the Examiner has
4
Appeal 2014-008545
Application 12/329,061
failed to notify Appellants of the basis for the rejection with sufficient
specificity to allow Appellants to judge the propriety of continuing
prosecution. See 35 U.S.C. § 132(a); 37 C.F.R. § 1.104(a)(2), (c)(2). “[T]he
precise language of 35 U.S.C. § 102 that ‘(a) person shall be entitled to a
patent unless,’ concerning novelty and unobviousness, clearly places a
burden of proof on the Patent Office which requires it to produce the factual
basis for its rejection of an application under sections 102 and 103.” In re
Warner, 379 F.2d 1011, 1016 (CCPA 1967). The Patent Trial and Appeal
Board is primarily a tribunal of review. See Ex Parte Frye, 94 USPQ2d
1072, 1075—77 (BPAI 2010) (precedential). For that review to be
meaningful it must be based on some concrete evidence in the record to
support the Examiner’s factual findings and legal conclusions. In re Zurko,
258 F.3d 1379, 1385—86 (Fed. Cir. 2001). A rejection must be set forth in a
sufficiently articulate and informative manner as to meet the notice
requirement of § 132, such as by identifying where or how each limitation of
the rejected claims is met by the prior art references. In re Jung, 637 F.3d
1356, 1363 (Fed. Cir. 2011); see also Gechter v. Davidson, 116 F.3d 1454,
1460 (Fed. Cir. 1997) (PTO must create a record that includes “specific fact
findings for each contested limitation and satisfactory explanations for such
findings”). It is neither our place, nor Appellants’ burden, to speculate as to
the basis for rejecting claims. In re Stepan Co., 660 F.3d 1341, 1345 (Fed.
Cir. 2011) (PTO has obligation to provide timely notice to the applicant of
all matters of fact and law asserted).
In the Answer, the Examiner additionally cites Yoshimura
paragraph 43 as indicating “the driver’s demand detecting sensors include a
steering angle sensor . . ., a brake pedal position sensor . . ., and an
5
Appeal 2014-008545
Application 12/329,061
accelerator pedal position sensor . . . Ans. 4. As in the Final Office
Action, however, the Examiner does not explain how this disclosure relates
to the four variables recited in claim 1. Id.
Appellants argue Hrovat, like Yoshimura, fails to disclose controlling
wheel torque based on a vehicle speed, acceleration rate, an estimated
vehicle wheel torque, and an acceleration rate to wheel torque conversion
factor. Br. 5. Appellants’ argument is persuasive. The Examiner cites
Hrovat’s Abstract, Figure 1, and column 4, lines 42—60, in support of the
challenged finding. Final Act. 3, 5. Hrovat’s Abstract pertinently discloses
“a signal value indicative of estimated wheel torque” produced by “summing
a first value which indicated the estimated torque attributable to engine
combustion and a second value which is proportional to engine
acceleration/deceleration which indicates the amount of torque attributable
to the inertial movement of engine and drive train masses” (emphases
added). Hrovat’s Figure 1 and column 4, lines 42—60, pertinently disclose
combining an “estimated inertial torque value” with “torque losses from
other sources as indicated by operating status inputs . . . which indicate
factors [such] as the additional load on the engine imposed when the air
conditioner is operating and when the alternator is drawing power,” to form
current torque adjustment value 50. Hrovat, Fig. 1, 4:42-48. Value 50 “is
then combined additively with the . . . estimated engine torque value” from
unit 46 to form estimated wheel torque value 25. Id. at Fig. 1, 4:48—54.
Our consideration of these disclosures indicates they reflect
calculating an estimated vehicle wheel torque and possibly acceleration rate
as recited in claim 1, but they have little relationship to the other two
claimed variables. Further, to the extent there is any such relationship, the
6
Appeal 2014-008545
Application 12/329,061
Examiner does not explain what it might be, and therefore has failed to
notify Appellants of the basis for the rejection with sufficient specificity to
allow Appellants to judge the propriety of continuing prosecution. See Final
Act. 3, 5; Ans. 2—5.
For the foregoing reasons, we do not sustain the rejection of claim 1
as unpatentable over Yoshimura and Hrovat.
B. Obviousness over Yoshimura, Hrovat, and either Murray or Ohmori—
Claims 2 and 13
The Examiner’s additional consideration of claims 2 and 13, each of
which depends from claim 1, in light of Yoshimura, Hrovat, and either
Murray or Ohmori, does not cure the deficiency of Yoshimura and Hrovat as
to claim 1, noted above. See Final Act. 5—7; Ans. 5—6. Therefore, we do not
sustain the rejections of claims 2 and 13.
C. Obviousness over Hrovat, Aitchison, and Thacher—Claims 3 and 6
In rejecting independent claim 3, the Examiner finds, inter alia, that
Hrovat discloses, as claimed, “in response to detecting an accelerator pedal
position anomaly . . . determining a temporary estimated wheel torque using
a vehicle speed acceleration rate and an acceleration rate to wheel torque
conversion factor.'1'’ Final Act. 7 (citing Hrovat, Abstract, 4:42—60)
(emphases added); see also Ans. 7—8 (further discussing cited Hrovat
disclosure).
Appellants argue Hrovat does not disclose those claim limitations.
Br. 8. Appellants’ argument is persuasive. Hrovat at column 4, lines 42—60,
fails to discuss acceleration at all, much less detecting an accelerator pedal
position anomaly, or using a vehicle speed acceleration rate or an
acceleration rate to wheel torque conversion factor. The Hrovat Abstract
7
Appeal 2014-008545
Application 12/329,061
does refer to “engine acceleration/deceleration” in connection with
producing an estimated wheel torque value, which may have some
relationship to the vehicle speed acceleration rate recited in claim 3.
However, the Examiner does not explain what such a relationship might be,
or explain how Hrovat additionally discloses detecting an accelerator pedal
position anomaly, or an acceleration rate to wheel torque conversion factor,
as also recited in claim 3. See Final Act. 3,7; Ans. 7—8.
The Examiner’s further consideration of Aitchison and Thacher in
relation to claim 3 does not cure the noted deficiency of Hrovat. See Final
Act. 7—8. The Examiner’s further consideration of claim 6, which depends
from claim 3, also does not cure the noted deficiency of Hrovat. See id. at
8—9. Therefore, we do not sustain the rejection of claims 3 and 6 as
unpatentable over Hrovat, Aitchison, and Thacher.
D. Obviousness over Hrovat, Aitchison, Thacher, and either Murphy or
Ohmori—Claims 4, 5, and 14
The Examiner’s additional consideration of claims 4, 5, and 14, each
of which depends from claim 3, in light of Hrovat, Aitchison, Thacher, and
either Murphy or Ohmori, does not cure the deficiency of Hrovat as to
claim 3, noted above. See Final Act. 11—12 (claims 4 and 5), 13—14
(claim 14). Therefore, we do not sustain the rejections of claims 4, 5, and
14.
E. Obviousness over Kuang, Hrovat, and Aitchison—Claims 8 and 11
In rejecting independent claim 8, the Examiner finds, inter alia, that
Aitchison discloses, as claimed, “a feed-forward torque associated with
forward or reverse gear.” Final Act. 10 (citing Aitchison || 30-33, 38—39)
8
Appeal 2014-008545
Application 12/329,061
(emphasis added); see also Ans. 8 (discussing same Aitchison disclosure in
connection with claim 3).
Appellants argue Aitchison does not disclose that claim limitation,
because “Aitchison teaches a method for controlling an engine during start­
up” rather than “based on a forward or reverse gear.” Br. 9; see also id. at 8
(equating Aitchison’s engine start-up with “zero traction wheel speed”).
Appellants’ argument is persuasive. The cited Aitchison disclosure
describes controlling engine torque during a start-up phase of an internal
combustion engine. Aitchison ]f]f 30—33, 38—39. It is not clear from the
cited disclosure, and the Examiner does not explain, how controlling engine
torque during start-up of an internal combustion engine relates to the “torque
associated with forward or reverse gear” recited in claim 8.
The Examiner’s further consideration of Kuang and Hrovat in relation
to claim 8 does not cure the noted deficiency of Aitchison. See Final Act. 9—
10. The Examiner’s further consideration of claim 11, which depends from
claim 8, also does not cure the noted deficiency of Aitchison. See id. at 10-
11 (relying on Aitchison || 38—39 as disclosing the use of feed-forward
torque “for forward drive” and “for reverse drive” as recited in claim 11).
Therefore, we do not sustain the rejection of claims 8 and 11 as unpatentable
over Kuang, Hrovat, and Aitchison.
F. Obviousness over Kuang, Hrovat, Aitchison, and Murphy—
Claims 9 and 11
The Examiner’s additional consideration of claims 9 and 11, each of
which depends from claim 8, in light of Kuang, Hrovat, Aitchison, and
Murphy, does not cure the deficiency of Aitchison as to claim 8, noted
above. See Final Act. 12—13. In particular, the Examiner’s second rejection
9
Appeal 2014-008545
Application 12/329,061
of claim 11 relies on Aitchison as disclosing the “feed-forward torque
associated with forward or reverse gear” recited in claim 8, which we found
to be deficient above, and then determines it would have been obvious to use
different speed-torque tables for the respective forward and reverse gears as
recited in claim 11, in light of Murphy. Id. at 13. Murphy does not remedy
Aitchison’s deficiency. Therefore, we do not sustain the rejection of
claims 9 and 11 as unpatentable over Kuang, Hrovat, Aitchison, and
Murphy.
G. Obviousness over Staub and Ueoka—Claims 16 and 18
In rejecting independent claim 16, the Examiner finds, inter alia, that
Staub discloses “controlling wheel torque” and Ueoka discloses, as claimed,
“target vehicle acceleration associated with current vehicle speed in
response to an accelerator pedal position signal anomaly.'1'’ Final Act. 14
(citing Ueoka, Figs. 2 and 3, Tflf 38—39) (emphasis added); id. at 4 (finding
Ueoka discloses “acceleration pedal position sensor 54 includes two position
sensors for anomaly detection, and ensure the driver’s request for
acceleration in reliability”); see also Ans. 12 (further discussing Ueoka
disclosure). The Examiner concludes it would have been obvious to modify
Staub’s method for controlling wheel torque in light of Ueoka’s teaching “in
order to reduce wasteful energy consumption.” Final Act. 14.
Appellants argue “Ueoka only generally discusses the use of an
accelerator anomaly sensor” and fails to disclose, as claimed, “controlling
wheel torque based on a target vehicle acceleration associated with current
vehicle speed.” Br. 14. Appellants’ argument is persuasive. The cited
Ueoka disclosure describes an accelerator pedal position sensor including
two different sensors, one “for control” and another “for anomaly detection.”
10
Appeal 2014-008545
Application 12/329,061
Ueoka 138. During normal operation, the two sensors maintain output
voltage values with a constant difference between them (V(0)), which allows
the system to detect a sensor anomaly in the event the voltage difference
changes. Id. We do not find anything in the cited disclosure to indicate
what the system might do in response to detecting a sensor anomaly, much
less controlling wheel torque in the manner specified in claim 16.
The Examiner’s further consideration of Staub in relation to claim 16
does not cure the noted deficiency of Ueoka. See Final Act. 14. The
Examiner’s further consideration of claim 18, which depends from claim 16,
also does not cure the noted deficiency of Ueoka. See id. at 15. Therefore,
we do not sustain the rejection of claims 16 and 18 as unpatentable over
Staub and Ueoka.
H. Obviousness over Staub, Ueoka, and either Murphy, Aitchison, or
Mistry—Claims 17, 19, and 20
The Examiner’s additional consideration of claims 17, 19, and 20,
each of which depends from claim 16, in light of Staub, Ueoka, and either
Murphy, Aitchison, or Mistry, does not cure the deficiency of Ueoka as to
claim 16, noted above. See Final Act. 15—17; Ans. 12—13. Therefore, we do
not sustain the rejections of claims 17, 19, and 20.
DECISION
The Examiner’s decision to reject claims 1—6, 8, 9, 11, 13, 14, and
16—20 is reversed.
REVERSED
11