Xiaohong Nina. Duan et al.Download PDFPatent Trials and Appeals BoardMar 13, 202014887867 - (D) (P.T.A.B. Mar. 13, 2020) Copy Citation 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. 14/887,867 10/20/2015 Xiaohong Nina DUAN 83578369 7078 28395 7590 03/13/2020 BROOKS KUSHMAN P.C./FGTL 1000 TOWN CENTER 22ND FLOOR SOUTHFIELD, MI 48075-1238 EXAMINER HAN, CHARLES J ART UNIT PAPER NUMBER 3662 NOTIFICATION DATE DELIVERY MODE 03/13/2020 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 XIAOHONG NINA DUAN and XU WANG Appeal 2019-000253 Application 14/887,867 Technology Center 3600 ____________ Before: JOHN C. KERINS, MICHAEL L. WOODS, and ERIC C. JESCHKE, Administrative Patent Judges. KERINS, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the Examiner’s decision to reject claims 1–19.1 We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 The term “Appellant” is used herein to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies Ford Global Technologies LLC as the real party in interest. Appeal Br. 2. Appeal 2019-000253 Application 14/887,867 2 THE CLAIMED SUBJECT MATTER Appellant’s invention relates to a vehicle having a controller that provides an estimated traction battery age. Claim 1 is illustrative, and is reproduced below: 1. A vehicle comprising: a traction battery; and a controller programmed to output a traction battery age that is estimated based on a ratio of a reference battery capacity value having a predetermined probability of being less than an actual battery capacity value to a beginning-of-life battery capacity value, wherein the reference battery capacity value is derived from a mean and standard deviation of a plurality of historical battery capacity estimates of the traction battery. THE REJECTIONS The Examiner rejects: (i) claims 1–19 under 35 U.S.C. § 112(b) as being indefinite; (ii) claims 1–3, 7, and 8 under 35 U.S.C. § 103 as being unpatentable over Cook (US 2005/0151513 A1, published July 14, 2005) in view of DeCoursey, “Statistics and Probability for Engineering Applications with Microsoft® Excel,” Newness (2003) (“DeCoursey”), and Miwa (US 2015/0046109 A1, published Feb. 12, 2015); (iii) claim 4 under 35 U.S.C. § 103 as being unpatentable over Cook in view of DeCoursey, Miwa, and Fernandez (US 4,638,237, issued Jan. 20, 1987); (iv) claims 5 and 6 under 35 U.S.C. § 103 as being unpatentable over Cook in view of DeCoursey, Miwa, Fernandez, and Verdun (US 2014/0217958 A1, published Aug. 7, 2014); Appeal 2019-000253 Application 14/887,867 3 (v) claims 9 and 12–14 under 35 U.S.C. § 103 as being unpatentable over Cook in view of DeCoursey, Miwa, Fernandez, and Cawthorne (US 2005/0077867 A1, published Apr. 14, 2005); (vi) claim 10 under 35 U.S.C. § 103 as being unpatentable over Cook in view of DeCoursey, Miwa, Cawthorne, Fernandez, and Verdun; (vii) claim 11 under 35 U.S.C. § 103 as being unpatentable over Cook in view of DeCoursey, Miwa, Cawthorne, Fernandez, Verdun, and Gumbrell (US 2016/0193474 A1, published July 7, 2016); (viii) claims 15 and 18 under 35 U.S.C. § 103 as being unpatentable over Cook in view of DeCoursey, Miwa, and Cawthorne; (ix) claims 16 and 17 under 35 U.S.C. § 103 as being unpatentable over Cook in view of DeCoursey, Miwa, Cawthorne, and Verdun; and (x) claim 19 under 35 U.S.C. § 103 as being unpatentable over Cook in view of DeCoursey, Miwa, Cawthorne, and Fernandez. ANALYSIS Claim 1–19--35 U.S.C. § 112(b)--Indefiniteness The Examiner determines that it is unclear “as to what is ‘based on’ the ‘ratio,’” asserting that this portion of the claim could be referring to, for example, “the function of output, the battery age itself, [or] the determination of the battery age.” Final Act. 5. The Examiner appears to base this finding on the further assertion that “the terms of the ratio are themselves . . . vague and indefinite.” Id. In then construing the claim for the purposes of examining on prior art grounds, the Examiner resolves the alleged lack of clarity by merely reordering the language of claim 1 such that the language “reference battery capacity value having a predetermined Appeal 2019-000253 Application 14/887,867 4 probability of being less than an actual battery capacity value” appears in a separate clause with the term “wherein” added, instead of directly following the initial recitation of “reference battery capacity value,” as set forth in claim 1. Id. The Examiner’s reformulation of the claim language might be regarded as being somewhat easier to comprehend. However, we agree with Appellant that claim 1 as presently written clearly conveys that the estimated traction battery age that is to be outputted by the controller takes into account (i.e., “is based on”) “a ratio of a reference battery capacity value,” “to a beginning-of-life battery capacity value,” and that the “reference battery capacity value” is characterized by “having a predetermined probability of being less than an actual battery capacity value.” Appeal Br. 14 (Claims Appendix). This is indeed the meaning agreed upon by the Examiner (for examination purposes) and Appellant. The rejection of claim 1, and of claims 2–8 depending therefrom, is not sustained. The rejections of independent claims 9 and 15 are similar in nature, with the limitation “reference amp-hour value” being at issue in place of “reference battery capacity value.” Final Act. 6. For the same reasons noted above, we do not sustain the rejection of claims 9 and 15, and of claims 10– 14 and 16–19 depending therefrom, as being indefinite. Claims 1–3, 7 and 8--35 U.S.C. § 103--Cook/DeCoursey/Miwa The Examiner finds, for claim 1, that Cook discloses a technique for predicting a battery end-of-life that involves obtaining a performance index (PI) that is based on a ratio of a reference battery capacity to a beginning-of- Appeal 2019-000253 Application 14/887,867 5 life battery capacity, citing to paragraphs 36–41 of Cook. Final Act. 7–8. The Examiner finds that the reference battery capacity is represented in Cook as the sum “M + N”, with “M” being an “actual battery capacity removed from the battery during a given discharge,” and with “N” being a “calculated remaining capacity of the actual battery using the Virtual Cell during a given discharge.” Id. at 8 (referencing Cook, ¶¶ 38–39.) The claimed beginning-of-life battery capacity is asserted to be disclosed in Cook in the form of the denominator “X” in the PI ratio, which is a “nominal ideal capacity specified by the manufacturer.” Id. The Examiner acknowledges that Cook does not expressly teach the limitation requiring the reference battery capacity value is to have a predetermined probability of being less than an actual battery capacity value. Final Act. 8. The Examiner points out that DeCoursey discloses, in a chapter devoted to Normal Distributions, a conventional statistical method or technique whereby a reference value may be selected that has a predetermined probability of being less than an observed (i.e., actual) value. Id. The Examiner concludes that it would have been obvious to modify the teaching of Cook so as to “configur[e] that the reference battery capacity value has a predetermined probability of being less than an actual battery capacity value . . . in order to apply the characteristics of a normal probability distribution model to describe the probabilities of a continuous random observed variable.” Id. Responding to criticism from Appellant as to the applicability of the DeCoursey technique to the Cook PI determination, the Examiner explains that “paragraph [0041] of Cook explains that the performance index (PI) may be recorded every time a discharge occurs such that the information is Appeal 2019-000253 Application 14/887,867 6 plotted against discharge dates and, ‘may thus be used to predict battery end- of-life using conventional mathematical and statistical trending and forecasting functions.’” Ans. 11 (emphasis omitted). The Examiner continues by explaining that DeCoursey discloses, as a conventional mathematical and statistical trending and forecasting function, the determination or use of a reference value that has a predetermined probability of being less than an actual value. Id. Appellant argues that DeCoursey does not disclose why a person of ordinary skill in the art would apply the statistical techniques cited by the Examiner to battery capacity values, as claimed. Reply Br. 2. According to Appellant, the numerator “M + N” of the performance index ratio is an actual battery capacity determined from the sum of an actual battery capacity removed from the battery during a given discharge, and a calculated remaining capacity of the actual battery using a Virtual Cell during a given discharge. Appeal Br. 7. Appellant maintains that the general statistical method taught by DeCoursey would not suggest replacing this actual battery capacity value with a value having a predetermined probability of being less than the actual value. Id. Appellant has the better position. The disclosure in Cook of using conventional mathematical and statistical techniques for predicting battery end-of-life is in reference to the plot of the PI values obtained by the disclosed ratio, as a function of, or other relationship to, discharge date data. This does not suggest the use of normal distribution and probability techniques to the numerator “M + N” of the PI determination. Cook does mention the use of mechanical modeling techniques as the “virtual cell” that factors into the obtention of the value “N” in the numerator (Cook ¶ 33), but Appeal 2019-000253 Application 14/887,867 7 does not disclose involving normal distribution techniques in this modeling, and, in any event, the modeling does not involve the other addend variable “M,” which appears to be an actual measured or sensed quantity. The Examiner ends up comparing examples given by DeCoursey with Appellant’s disclosure of applying conventional statistical methods to obtain a reference battery capacity value, in attempting to buttress the proposed modification. Ans. 11. This hints at the use of impermissible hindsight reconstruction in view of Appellant’s disclosure. Significantly, the Examiner mentions in passing, without noting any possible pertinence to the Cook disclosure, that the standard techniques involving a normal probability distribution model are appropriate “upon identifying that a set of data follows a normal distribution.” Id. The Examiner has not established, by citing to evidence or providing sound technical reasoning, that it was known in the art that battery capacity data does so. The Examiner does not rely on Miwa in any manner that overcomes the above deficiency in the combination of Cook and DeCoursey. The rejection of claim 1 as being unpatentable over these references is therefore not sustained. The rejection is also not sustained as to claims 2, 3, 7, and 8, which depend from claim 1. Claim 4--35 U.S.C. § 103--Cook/DeCoursey/Miwa/Fernandez The rejection of claim 4 suffers from the same deficiency as discussed above, and the rejection is not sustained. Appeal 2019-000253 Application 14/887,867 8 Claims 5 and 6--35 U.S.C. § 103-- Cook/DeCoursey/Miwa/Fernandez/Verdun The rejection of claims 5 and 6 suffers from the same deficiency as discussed above, and the rejection is not sustained. Claims 9 and 12–14--35 U.S.C. § 103-- Cook/DeCoursey/Miwa/Cawthorne/Fernandez The rejection of claims 9 and 12–14 suffers from the same deficiency as discussed above, pertaining to the claim limitation requiring that a reference amp-hour value have a predetermined probability of being less than an actual amp-hour value. The rejection is not sustained. Claim 10--35 U.S.C. § 103-- Cook/DeCoursey/Miwa/Cawthorne/Fernandez/Verdun The rejection of claim 10 suffers from the same deficiency as discussed above relative to claim 9, and the rejection is not sustained. Claim 11--35 U.S.C. § 103-- Cook/DeCoursey/Miwa/Cawthorne/Fernandez/Verdun/Gumbrell The rejection of claim 11 suffers from the same deficiency as discussed above relative to claim 9, and the rejection is not sustained. Claims 15 and 18--35 U.S.C. § 103--Cook/DeCoursey/Miwa/Cawthorne The rejection of claims 15 and 18 suffers from the same deficiency as discussed above relative to claim 9, and the rejection is not sustained. Claims 16 and 17--35 U.S.C. § 103-- Cook/DeCoursey/Miwa/Cawthorne/Verdun Appeal 2019-000253 Application 14/887,867 9 The rejection of claim 16 and 17 suffers from the same deficiency as discussed above relative to claim 9, and the rejection is not sustained. Claim 19--35 U.S.C. § 103--Cook/DeCoursey/Miwa/Cawthorne/Fernandez The rejection of claim 19 suffers from the same deficiency as discussed above relative to claim 9, and the rejection is not sustained. DECISION The rejection of claims 1–19 under 35 U.S.C. §112(b) is reversed. The rejections of claims 1–19 under 35 U.S.C. § 103 are reversed. CONCLUSION In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–19 § 112(b) Indefiniteness 1–19 1–3, 7, 8 § 103 Cook, DeCoursey, Miwa 1–3, 7, 8 4 § 103 Cook, DeCoursey, Miwa, Fernandez 4 5, 6 § 103 Cook, DeCoursey, Miwa, Fernandez, Verdun 5, 6 9, 12–14 § 103 Cook, DeCoursey, Miwa, Cawthorne, Fernandez 9, 12–14 10 § 103 Cook, DeCoursey, Miwa, Cawthorne, Fernandez, Verdun 10 11 § 103 Cook, DeCoursey, Miwa, Cawthorne, Fernandez, Verdun, Gumbrell 11 Appeal 2019-000253 Application 14/887,867 10 Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 15, 18 § 103 Cook, DeCoursey, Miwa, Cawthorne 15, 18 16, 17 § 103 Cook, DeCoursey, Miwa, Cawthorne, Verdun 16, 17 19 § 103 Cook, DeCoursey, Miwa, Cawthorne, Fernandez 19 Overall Outcome 1–19 REVERSED Copy with citationCopy as parenthetical citation