Ex Parte Song et al

Patent Trial and Appeal Board

Nov 30, 2016

12987190 (P.T.A.B. Nov. 30, 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.
12/987,190 01/10/2011 Jing Song 83166686 8024
28395 7590 12/02/2016
RROOKS KTTSHMAN P C /FfTET EXAMINER
1000 TOWN CENTER GEBRESILASSIE, KIBROM K
22ND FLOOR
SOUTHFIELD, MI 48075-1238 ART UNIT PAPER NUMBER
2128
NOTIFICATION DATE DELIVERY MODE
12/02/2016 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 JING SONG, RICHARD DYCHE ANDERSON,
YANAN ZHAO, and XIAO GUANG YANG
Appeal 2015-007874
Application 12/987,190
Technology Center 2100
Before ST. JOHN COURTENAY III, SCOTT B. HOWARD, and
MARC S. HOFF Administrative Patent Judges.
COURTENAY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s Final
Rejection of claims 2—7, 11—16, and 19-23. Claims 1, 17, and 18 are
canceled. The Examiner indicates that “[cjlaims 8 and 9 are objected to as
being dependent upon a rejected base claim, but would be allowable if
rewritten in independent form.” (Final Act. 2). We have jurisdiction under
35 U.S.C. § 6(b).
We Affirm.
Appeal 2015-007874
Application 12/987,190
Invention
The disclosed and claimed invention on appeal “relates to a method
for determining a power capability for a battery.” Spec. 11.
Representative Claim
21. A method for using a power capability for a vehicle battery,
comprising:
using a controller to define the power capability of the battery
using as inputs to the controller [LI] a limiting battery voltage and
[L2] a limiting battery current that is based on a battery current
defined by at least one governing equation of a circuit modeling the
behavior of the battery, and
outputting the power capability from the controller to a vehicle
control.
(Contested limitations LI and L2 are emphasized.)
Rejection
Claims 2—7, 11—16, and 19-23 are rejected under Pre-AIA 35 U.S.C.
§ 102(b) as being anticipated by Masuda et al. (US 2009/0058366 Al; Mar.
5, 2009) (hereinafter “Masuda”).
ANALYSIS
We have considered all of Appellants’ arguments and any evidence
presented. Based upon our review of the record, we agree with and adopt
the Examiner’s finding of anticipation for the reasons discussed below. We
highlight and address specific findings and arguments for emphasis in our
analysis below.
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Appeal 2015-007874
Application 12/987,190
Rejection of Independent Claim 21 under 35 U.S.C. § 102(b)
Issue: Under 35 U.S.C. § 102(b), did the Examiner err in finding the
Masuda reference expressly or inherently discloses contested limitations LI
and L2, within the meaning of independent claim 21, under a broad but
reasonable interpretation? 1
To the extent Appellants may substantively contest limitation LI, we
find no definition in the claim or in the Specification for the recited LI
“limiting battery voltage” that would preclude the Examiner’s reading of the
limitation on either of the Vmm or Vmax voltages described in Masuda’s
formulas (page 7), as cited by the Examiner, (final Act. 12).
Likewise, regarding limitation L2, we find no definition in the
Specification for a “limiting battery current” beyond what is required by the
claim language (“a limiting battery current that is based on a battery current
defined by at least one governing equation of a circuit modeling the
behavior of the battery'”). (Claim 21).2
1 We give the contested claim limitations the broadest reasonable
interpretation consistent with the Specification. See In re Morris, 111 L.3d
1048, 1054 (Led. Cir. 1997); cf Spec. 140 (“While exemplary embodiments
are described above, it is not intended that these embodiments describe all
possible forms of the invention. Rather, the words used in the specification
are words of description rather than limitation, and it is understood that
various changes may be made without departing from the spirit and scope of
the invention.”).
2 Because “applicants may amend claims to narrow their scope, a broad
construction during prosecution creates no unfairness to the applicant or
patentee.” In re ICON Health and Fitness, Inc., 496 L.3d 1374, 1379 (Led.
Cir. 2007) (citation omitted).
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Appeal 2015-007874
Application 12/987,190
In considering the doctrine of claim differentiation,3 we note that
claim 21 is broader than associated dependent claims 2, 3, 4, 5, and 6, which
each recite various ways of determining or defining the “limiting battery
current” that are not required within the scope of broader claim 21.
Regarding limitation L2, we note formulas 31, 32, 36, and 37 (relied
on by the Examiner, Final Act. 11), and described on Masuda’s page 7,
incorporate the battery current values (ibmax and ibmin) and associated
formulas 23 and 24, respectively (190), which the Examiner also relies on
for describing the “at least one equation” as recited in each of independent
claims 22 and 23.
Appellants urge (App. Br. 7):
The battery current referenced by the Examiner that is not a
limiting current is lb, which is a measured battery current-
see, e.g., Equations 31 and 32 of Masuda referenced by the
Examiner. As stated in Masuda, "[t]he current sensor 56
detects a charging-discharging battery current lb of the battery
50," see Paragraph 0025. Therefore, lb is not "based on a
battery current defined by at least one governing equation of a
circuit modeling the behavior of the battery," as expressly
3 “When different words or phrases are used in separate claims, a difference
in meaning is presumed.” Nystrom v. TREXCo., Inc., 424 F.3d 1136, 1143
(Fed. Cir. 2005). Under the doctrine of claim differentiation, “the presence
of a dependent claim that adds a particular limitation gives rise to a
presumption that the limitation in question is not present in the independent
claim.” Phillips v. AWHCorp, 415 F.3d 1303, 1315 (Fed. Cir. 2005). This
presumption is “especially strong when the limitation in dispute is the only
meaningful difference between an independent and dependent claim, and
one party is urging that the limitation in the dependent claim should be read
into the independent claim.” SunRace Roots Enterprise Co., Ltd. v. SRAM
Corp., 336 F.3d 1298, 1303 (Fed. Cir. 2003).
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Appeal 2015-007874
Application 12/987,190
claimed in claim 21.
However, we find that Appellants fail to address the Examiner’s
specific findings, which we find rely on the ibmax and itw values and
associated formulas 23 and 24, respectively (190), which the Examiner also
relies on for describing the “at least one equation” as recited in each of
independent claims 22 and 23, and are incorporated in the formulas 31, 32,
36, and 37, as cited by the Examiner regarding claim 21. (Final. Act. 11).
We note that claim 23 recites essentially the same limitations as claim
21, but is slightly broader. Regarding claim 22, we find the recited “power
capability of the battery as a function of the limiting battery current and a
limiting battery voltage is described by formulas 31, 32, 36, and 37 (relied
on by the Examiner, Final Act 12), as further explained by Masuda,
paragraph 100, as reproduced on page 5 of the Answer:
[0100] According to the third embodiment, the behavior of
the battery voltage Vb is predicted using the battery
voltage behavior model that models the relationship of the
behavior of the battery voltage Vb to the behaviors of the
internal resistance Ri and the charging-discharging battery
current lb. The charging-discharging power (i.e., Win,
Wout) of the battery 50 is limited such that the battery
voltage Vb can be within a predetermined voltage range
(i.e., range between Vmax, Vmin).
(Emphasis omitted, italics added).
Given the aforementioned evidence cited by the Examiner, on this
record, and for essentially the same reasons articulated by the Examiner in
the Answer, we find a preponderance of the evidence supports the
Examiner’s finding of anticipation regarding each of independent claims 21,
22, and 23. Therefore, we agree with and adopt the Examiner’s findings and
sustain the anticipation rejection of each independent claim on appeal.
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Appeal 2015-007874
Application 12/987,190
Remaining Dependent Claims
Appellants advance no separate, substantive arguments regarding the
remaining dependent claims. Arguments not made are waived. See 37
C.F.R. § 41.37(c)(l)(iv). Therefore, we sustain the Examiner’s anticipation
rejection of the remaining dependent claims on appeal.
Reply Brief
To the extent Appellants advance new arguments in the Reply Brief
not in response to a shift in the Examiner's position in the Answer, we note
arguments raised in a Reply Brief that were not raised in the Appeal Brief or
are not responsive to arguments raised in the Examiner’s Answer will not be
considered except for good cause. See 37 C.F.R. § 41.41(b)(2).
Conclusion
On this record, and based on a preponderance of the evidence, we are
not persuaded by Appellants’ arguments the Examiner erred regarding the
anticipation rejection over Masuda of all claims before us on appeal.
DECISION
We affirm the Examiner’s rejection of claims 2—7, 11—16, and 19—23
under 35 U.S.C. § 102(b).
No time for taking any action connected with this appeal may be
extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R. § 41.50(f).
AFFIRMED
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