Ex Parte MILLER et al

Patent Trials and Appeals Board

Jun 7, 2019

14640366 - (D) (P.T.A.B. Jun. 7, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/640,366 03/06/2015
28395 7590 06/11/2019
BROOKS KUSHMAN P.C./FG1L
1000 TOWN CENTER
22NDFLOOR
SOUTHFIELD, MI 48075-1238
FIRST NAMED INVENTOR
Kenneth James MILLER
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
83498708 7308
EXAMINER
FE!, JORDAN S
ART UNIT PAPER NUMBER
3665
NOTIFICATION DATE DELIVERY MODE
06/11/2019 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 KENNETH JAMES MILLER and THOMAS G. LEONE
Appeal 2018-008346
Application 14/640,366 1
Technology Center 3600
Before JENNIFERD. BAHR, STEFAN STAICOVICI, and
MICHAEL J. FITZPATRICK, Administrative Patent Judges.
ST AI CO VICI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE-
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
decision in the Final Office Action ( dated Dec. 26, 2017, hereinafter "Final
Act.") rejecting claims 1-13.
We have jurisdiction over this appeal under 35 U.S.C. § 6(b ).
SUMMARY OF DECISION
We AFFIRM.
1 Ford Global Technologies, LLC is the applicant and is identified as the real
party in interest in Appellants' Appeal Brief (filed Apr. 12, 2018, hereinafter
"Br."). Br. 1.
Appeal 2018-008346
Application 14/640,366
INVENTION
Appellants' invention is related to "systems and methods for
controlling a vehicle equipped with an adaptive cruise control system and
equipped for regenerative braking." Spec. para. 1.
Claims 1, 6, and 11 are independent. Claim 1 is illustrative of the
claimed invention and reads as follows:
1. A hybrid vehicle control method comprising:
responsive to an automated speed control system being
active, a target speed being selected, and an anticipated change
in power demand for maintaining the target speed based on a
detected upcoming road grade change, altering current speed
away from the target speed prior to the road grade change
storing power to maintain electric-only mode through the grade
and then returning to the target speed following detection of
grade passage.
REJECTIONS
I. The Examiner rejects claims 1-13 under 35 U.S.C. § 112(b) as being
indefinite.
II. The Examiner rejects claims 1--4, 6-9, 11, and 12 under 3 5 U.S. C.
§ 103 as being unpatentable over Kawamata et al.
(US 2016/0019792 Al, pub. Jan. 21, 2016, hereinafter "Kawamata"),
Amano (US 2014/0316626 Al, pub. Oct. 23, 2014), Hedman et al.
(US 2005/0085974 Al, pub. Apr. 21, 2005, hereinafter "Hedman"),
and Bennett et al. (US 2005/0080523 Al, pub. Apr. 14, 2005,
hereinafter "Bennett").
III. The Examiner rejects claims 5, 10, and 13 under 35 U.S.C. § 103 as
being unpatentable over Kawamata, Amano, Hedman, Bennett, and
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Application 14/640,366
Chappell et al. (US 2011/0125376 Al, pub. May 26, 2011, hereinafter
"Chappell").
ANALYSIS
Rejection I
Appellants do not address the indefiniteness rejection of claims 1-13.
See Br. 3 ("[A]ny outstanding 112 rejections will be addressed following
resolution of the 103 rejections."). Accordingly, Appellants have waived
any argument of error, and we summarily sustain the rejection of these
claims. See Hyatt v. Dudas, 551 F.3d 1307, 1314 (Fed. Cir. 2008)
( explaining that summary affirmance without consideration of the
substantive merits is appropriate where an appellant fails to contest a ground
of rejection).
Rejection II
The Examiner finds that the combined teachings of Kawamata,
Amano, Hedman, and Bennett disclose "altering current speed away from
the target speed prior to the road grade change storing power to maintain
electric-only mode through the grade and then returning to the target speed
following detection of grade passage," as recited by independent claim 1.
See Final Act. 5-7 (citing Kawamata, paras. 59, 89-93, Figs. 1, 2, 5, 19,
Hedman, paras. 15-20, Bennett, paras. 65, 66).
In response, Appellants argue that "[p ]aragraph[] [ 65] of Bennett
discusses engine control and a silent mode, but does not discuss road grade
changes at all" and "[p ]aragraph [ 66] ... discusses engine activation when a
vehicle is in a silent mode during a road grade change, but does not discuss
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Application 14/640,366
anything relating to adjusting vehicle speed ahead of a detected road grade
change to store power for use during the road grade change." Br. 4. Thus,
according to Appellants, "Bennett appears to merely discuss activating an
engine when battery power is not enough to move a vehicle through a road
grade change." Id.
Appellants' arguments are not persuasive, because Appellants cannot
show nonobviousness by attacking the teachings of Bennett individually
when the rejection as articulated by the Examiner is based on a combination
of Kawamata, Amano, Hedman, and Bennett. See In re Merck & Co. Inc.,
800 F.2d 1091, 1097 (Fed. Cir. 1986) ("Non-obviousness cannot be
established by attacking references individually where the rejection is based
upon the teachings of a combination of references. [Each reference] must be
read, not in isolation, but for what it fairly teaches in combination with the
prior art as a whole."). In this case, Appellants' arguments are not
commensurate with the Examiner's rejection. The claimed feature of
adjusting vehicle speed ahead of a detected road grade change to store power
for use during the road grade change is taught "by a combination of
Kawamata (teach[ing] detecting upcoming grades) and Hedman (teach[ing]
modifying speed prior to a grade)," and not by Bennett. Examiner Answer
(dated June 15, 2018, hereinafter "Ans.") 14.
In particular, the Examiner finds that, although Kawamata discloses
"controlling the acceleration/ deceleration to match an upcoming target
speed," depending on a road gradient, Kawamata does not specifically
disclose changing the speed "prior to arriving at the change in road grade,"
as called for by claim 1. See Final Act. 5-6 ( citing Kawamata, paras. 59,
89-93, Figs. 1, 2, 5, 19) (emphasis omitted). Nonetheless, the Examiner
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Application 14/640,366
finds that because Hedman's control unit alters the speed of a vehicle by
keeping a throttle open while approaching an uphill incline or reducing the
throttle and/or applying brakes while approaching a downhill incline,
Hedman teaches "automatically altering current vehicle speed away from the
target vehicle speed prior to arriving at the change in road grade." Id. at 6-7
( citing Hedman paras. 15-20). As such, the Examiner is correct that the
claimed feature of adjusting vehicle speed ahead of a detected road grade
change to store power for use during the road grade change is taught by a
combination of Kawamata and Hedman. See Ans. 14. Hence, in a first
instance, we agree with the Examiner that
it would have been obvious to one of ordinary skill in the
art ... to further modify ... Kawamata to include automatically
altering current vehicle speed away from the target vehicle
speed prior to arriving at the change in road grade as taught by
Hedman because it allows the system to hit the proper speed
sooner and makes the system more effective.
Id. at 7. Appellants do not persuasively argue the Examiner's findings and
reasoning to combine the teachings of Kawamata and Hedman.
Furthermore, although we appreciate that Bennett discloses activating
an engine when an electric-only propulsion mode is not sufficient to
accelerate a vehicle up a grade that exceeds a threshold value (see Br. 4),
nonetheless, for grades not exceeding the threshold, Bennett's automated
speed control system changes speed to maintain an electric-only propulsion
mode (i.e., silent mode). See Final Act. 7; see also Bennet, para. 66. As
such, because Appellants do not persuasively argue against the Examiner's
findings and reasoning to combine the teachings of Kawamata, Hedman, and
Bennett, we further agree with the Examiner that
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Application 14/640,366
it would have been obvious to one of ordinary skill in the art at
the time of the invention to further modify ... Kawamata to
include wherein the vehicle changes its speed to maintain
electric-only mode operation as taught by Bennett because it
allows the system to stay in electric only mode longer and thus
saves fuel, is quieter and is better for the environment.
Final Act. 7 ( emphasis omitted). Accordingly, for the foregoing reasons, we
sustain the Examiner's rejection under 35 U.S.C. § 103 of independent claim
1 as unpatentable over Kawamata, Amano, Hedman, and Bennett.
In regards to the rejection of claims 2--4, which depend directly or
indirectly from claim 1, Appellants rely on the arguments discussed supra
("[ c ]laims 2-4 should be allowable based at least on dependency from
allowable claim 1."). Br. 4. Hence, for the same reasons discussed above,
we also sustain the rejection of claims 2--4 over the combined teachings of
Kawamata, Amano, Hedman, and Bennett.
Finally, Appellants' remarks with respect to the rejection of
independent claims 6 and 11 merely recite additional claim limitations and
vaguely assert that these limitations are not taught or suggested by the
applied references. See Br. 4--5. These statements do not constitute separate
arguments for patentability of the claims pursuant to 37 C.F.R.
§ 4I.37(c)(l)(iv). See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011)
(holding that the Board had reasonably interpreted 37 C.F.R.
§ 4I.37(c)(l)(vii) as requiring "more substantive arguments in an appeal
brief than a mere recitation of the claim elements and a naked assertion that
the corresponding elements were not found in the prior art"). Appellants
have waived any argument for separate patentability of these claims. See id.
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As such, we also sustain the rejection of independent claims 6 and 11,
and their respective dependent claims 7-9 and 12, as unpatentable over
Kawamata, Amano, Hedman, and Bennett.
Re} ection III
With respect to the rejection of dependent claims 5, 10, and 13,
Appellants rely on the same arguments discussed supra. See Br. 5.
Therefore, for the same reasons discussed above, we likewise sustain
the Examiner's rejection of claims 5, 10, and 13 as unpatentable over
Kawamata, Amano, Hedman, Bennett, and Chappell.
SUMMARY
The Examiner's decision to reject claims 1-13 under 35 U.S.C.
§ 112(b) is affirmed.
The Examiner's decision to reject claims 1-13 under 35 U.S.C. § 103
is affirmed.
No time period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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