Ex Parte King et al

Patent Trials and Appeals Board

Jul 31, 2013

11742890 - (D) (P.T.A.B. Jul. 31, 2013)

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.
11/742,890 05/01/2007 Kimberley King 81154335 5680
28395 7590 08/01/2013
BROOKS KUSHMAN P.C./FGTL
1000 TOWN CENTER
22ND FLOOR
SOUTHFIELD, MI 48075-1238
EXAMINER
VANAMAN, FRANK BENNETT
ART UNIT PAPER NUMBER
3618
MAIL DATE DELIVERY MODE
08/01/2013 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 KIMBERLEY KING, BIJAL PATEL,
VIET QUOC TO, PHILIP MICHAEL GONZALES, and
JOSEPHINE S. LEE
____________________

Appeal 2011-009205
Application 11/742,890
Technology Center 3600
____________________

Before: JOHN C. KERINS, WILLIAM A. CAPP, and
NEIL T. POWELL, Administrative Patent Judges.

POWELL, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-009205
Application 11/742,890

2
STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1-
18. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

THE CLAIMED SUBJECT MATTER
Independent claim 1, reproduced below, is illustrative of the appealed
subject matter.
1. A system for powering a power consuming
vehicle accessory of a hybrid electric vehicle
having a vehicle on state and a vehicle off state,
the system comprising:
at least one of a mechanical power plant and
a chemical power plant to move the vehicle;
a traction battery, having a state of charge,
to power the power consuming vehicle accessory
during the vehicle off state;
an electric motor to operatively couple the at
least one power plant and traction battery; and
a traction battery controller electrically
connected with the traction battery to periodically
monitor the state of charge of the traction battery
during the vehicle off state and to enable the
traction battery to power the power consuming
vehicle accessory, if the state of charge of the
traction battery is greater than a minimum state of
charge of the traction battery necessary to start the
at least one power plant, in response to a command
signal received during the vehicle off state.

Appeal 2011-009205
Application 11/742,890

3
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Ikeda US 5,595,064 Jan. 21, 1997
Kimura US 6,816,759 B2 Nov. 9, 2004

REJECTIONS
The following rejections are pending.
1. Claims 10 and 18 under 35 U.S.C. § 112, second paragraph, as
indefinite. Fin. Rej. 2; Ans. 3.
2. Claims 1-18 under 35 U.S.C. § 103(a) as obvious over Ikeda and
Kimura. Fin. Rej. 2; Ans. 4.

ANALYSIS
Indefiniteness Rejection
The Final Rejection and the Examiner’s Answer include a rejection of
claims 10 and 18 under 35 U.S.C. § 112, second paragraph, as being
indefinite. Fin. Rej. 2; Ans. 3. Appellants do not appeal this rejection. See
App. Br. 3. Accordingly, we summarily affirm the rejection of claims 10
and 18 as indefinite.

Obviousness Rejection
Appellants argue claims 1-18 as a group. We select claim 1 as
representative. Claims 2-18 stand or fall with representative claim 1. See 37
C.F.R. § 41.37(c)(1)(vii) (2011).
Appeal 2011-009205
Application 11/742,890

4
The Examiner concludes that claim 1 would have been obvious at the
time of the invention. See Ans. 4-7. In connection with this, the Examiner
finds that Ikeda discloses a system meeting nearly every limitation of
claim 1. Id. at 4-5. The Examiner finds that Ikeda discloses a traction
battery controller that enables a traction battery to power a power consuming
vehicle accessory, if the state of charge of the traction battery is greater than
a minimum state of charge, in response to a command signal received during
the vehicle off state. Id. at 4. The Examiner finds that Ikeda does not
disclose: (1) that the vehicle is a hybrid electric vehicle, or (2) that the
minimum state of charge at which the traction battery controller enables the
traction battery to power a power consuming vehicle accessory is a
minimum state of charge of the traction battery necessary to start at least one
power plant. Id. at 5.
Regarding the first of the above-noted differences between claim 1
and Ikeda, the Examiner finds that Kimura discloses a hybrid electric vehicle
with a power plant in the form of an engine 22. Id. The Examiner
concludes that it would have been obvious to implement Ikeda’s traction
battery controller in a hybrid vehicle with a power plant like Kimura’s
because the power plant would provide extended driving range and enhance
the ability to charge the traction battery. Id.
Regarding the second of the above-noted differences between claim 1
and Ikeda, the Examiner finds that a person of ordinary skill in the art would
have recognized the desirability of providing a mechanism to shut off
accessories when necessary to leave the battery in a state of charge
necessary to start the engine/power plant. Id. at 5-6. In connection with
this, the Examiner finds that “it is well established as being desirable to
Appeal 2011-009205
Application 11/742,890

5
maintain a battery in a condition where it may start an engine.” Id. at 5. As
supplementary evidence of this, the Examiner cites Laig-Horstebrock’s
disclosure of the importance of monitoring battery state of charge to
“assure[] that the energy content of the battery is sufficient to start the
engine.” Id. at 6-7 (citing Laig-Horstebrock, col. 1, ll. 10-26).
Appellants argue that neither reference teaches the claim 1 limitation
of a
traction battery controller . . . to enable the traction battery to
power the power consuming vehicle accessory, if the state of
charge of the traction battery is greater than a minimum state of
charge of the traction battery necessary to start the at least one
power plant, in response to a command signal received during
the vehicle off state.
App. Br. 3-4. In connection with this, Appellants argue that Kimura
discloses temporarily disabling supply of electricity from the traction battery
to a power consuming vehicle accessory during a driving cycle, not during a
vehicle off state. Id. at 3. The Examiner counters that Ikeda discloses
disabling supply of electricity from the traction battery to a power
consuming vehicle accessory during a vehicle off state. Ans. 8.
Appellants’ argument that neither reference individually discloses the
entirety of the disputed claim limitation does not apprise us of error in the
rejection. Appellants do not dispute the Examiner’s findings that Ikeda, not
Kimura, discloses disabling supply of electricity from the traction battery to
a power consuming vehicle accessory during a vehicle off state. See Ans. 4,
8. Indeed, Appellants do not dispute the Examiner’s finding that Ikeda
discloses every part of the disputed claim limitation except that the
“minimum state of charge of the traction battery” is specifically a state of
charge “necessary to start the at least one power plant.” See id. at 4-5. Nor
Appeal 2011-009205
Application 11/742,890

6
do Appellants dispute the substantive accuracy of the Examiner’s finding
addressing this difference: that a person of ordinary skill in the art would
have recognized the desirability of a mechanism to deactivate accessories to
leave the battery with sufficient charge to start the engine. See id. at 5-6.
Because Appellants’ argument that Kimura discloses stopping operation of a
vehicle accessory during a driving cycle does not negate any of the
foregoing findings supporting the Examiner’s conclusion of obviousness, the
argument does not establish by a preponderance of the evidence that the
Examiner erred.
Appellants also argue that “Kimura does not appear to have
‘accessories operable when the vehicle is not in use . . . .’” App. Br. 4.
Because the Examiner notes that Ikeda discloses such accessories,
Appellants’ argument does not establish by a preponderance of the evidence
that the Examiner erred. Ans. 8.
Appellants further argue that “Kimura already provides ‘a shut-off
mechanism for the accessories which would leave the battery in a specific
state of charge condition where it can still start the engine . . . .’” App. Br. 5.
Appellants similarly argue that “Kimura is specifically designed to
temporarily stop the operation of its auxiliary machinery while the vehicle is
being driven in electric only mode in order to start its engine.” Id. These
arguments also fail to apprise us of error in the Examiner’s conclusion of
obviousness. The mere assertion that Kimura includes some provisions for
disabling vehicle accessories under certain circumstances to preserve battery
power for starting an engine does not convince us by a preponderance of the
evidence that it would have been unobvious to include additional/alternative
provisions directed to the same purpose.
Appeal 2011-009205
Application 11/742,890

7
Appellants also take issue with the specific wording of the Examiner’s
finding regarding the known desirability of providing a mechanism for
shutting off accessories to leave the battery with enough charge to start the
engine. Specifically, Appellants note that the Examiner’s mention of “a
shut-off mechanism for the accessories which would leave the battery in a
specific state of charge condition” does not track the language of claim 1
verbatim. Ans. 6; App. Br. 5. In substance, the Examiner’s finding that
“one of ordinary skill in the art would well recognize that in a vehicle having
accessories operable when the vehicle is not in use it would be desirable to
provide a shut-off mechanism for the accessories which would leave the
battery in a specific state of charge condition where it can still start the
engine” supports a conclusion that it would have been obvious to “enable the
traction battery to power the power consuming vehicle accessory, if the state
of charge of the traction battery is greater than a minimum state of charge of
the traction battery necessary to start the at least one power plant,” as recited
in claim 1. Appellants’ attack on the form, but not the substance, of the
Examiner’s finding does not convince us by a preponderance of the evidence
that the Examiner erred.
Appellants further argue that “[t]he Examiner’s proposed combination
of the references ‘would [thus impermissibly] require a substantial
reconstruction and redesign of [Kimura] as well as a change in the basic
principle under which [Kimura] was designed to operate.’” App. Br. 5. The
Examiner responds that “[t]he examiner has not suggested that the entire
vehicle of Kimura be wholesale bodily-incorporated into the system of Ikeda
et al., nor that some part of the reference to Kimura be redesigned as
appellant appears to assert.” Ans. 9.
Appeal 2011-009205
Application 11/742,890

8
Appellants do not identify specifically what basic principle under
which Kimura was designed to operate that the proposed combination would
purportedly change. Additionally, Appellants do not point to any specific
reason that the proposed combination would require a substantial
reconstruction and redesign. The few differences between Kimura and the
claimed invention identified by Appellants in the arguments discussed above
do not convince us by a preponderance of the evidence that the proposed
combination requires a substantial reconstruction and redesign, or that the
proposed combination would have been unobvious to a person of ordinary
skill in the art. As the Examiner notes (Ans. 10), “[t]he test for obviousness
is not whether the features of a secondary reference may be bodily
incorporated into the structure of the primary reference; nor is it that the
claimed invention must be expressly suggested in any one or all of the
references.” In re Keller, 642 F.2d 413, 425 (CCPA 1981) (internal citations
omitted).
In the Reply Brief, Appellants argue that Kimura’s disclosure of
“stop[ping] the operation of its auxiliary machinery when starting its engine
if it is determined that ‘the battery output Pb is greater than the reference
electric power Pref’” “has nothing to do with a control system for an air-
conditioner of an electric vehicle.” Reply Br. 2. Appellants elaborate that a
person of ordinary skill in the art “would not have had reason to apply the
teachings of Kimura to Ikeda’s control system for controlling an air-
conditioner on an electric vehicle at least because Ikeda’s electric vehicle
does not have an engine.” Id.
This argument fails to acknowledge the Examiner’s well-reasoned
determination that it would have been obvious to improve on the electric
Appeal 2011-009205
Application 11/742,890

9
vehicle configuration disclosed by Ikeda with the addition of an engine to
arrive at a hybrid vehicle configuration. The mere fact that Ikeda does not
already include an engine does not provide any reason to conclude that it
would have been unobvious to add an engine. Additionally, given the
Examiner’s well-supported conclusion that it would have been obvious to
add an engine, Appellants’ suggestion that it would not have been obvious to
employ a strategy for a vehicle with an engine does not make sense.
Accordingly, this argument also fails to convince us by a preponderance of
the evidence that the Examiner erred.

DECISION
We AFFIRM the Examiner’s decision rejecting claims 1-18.
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)(iv).

AFFIRMED

mls