Anthony Mark. Phillips et al.

Patent Trials and Appeals Board

Jul 1, 2020

2018008927 (P.T.A.B. Jul. 1, 2020)

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.
13/157,533 06/10/2011 Anthony Mark Phillips 83185722 (FMC
3244 PUSP)
7414
28395 7590 07/01/2020
BROOKS KUSHMAN P.C./FGTL
1000 TOWN CENTER
22ND FLOOR
SOUTHFIELD, MI 48075-1238
EXAMINER
SMITH, ISAAC G
ART UNIT PAPER NUMBER
3662
NOTIFICATION DATE DELIVERY MODE
07/01/2020 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 ANTHONY MARK PHILLIPS,
GEORGIA-EVANGELIA KATSARGYRI, MING LANG KUANG,
ILYA VLADIMIR KOLMANOVSKY, JOHN OTTAVIO MICHELINI,
MUNTHER ABDULLAH DAHLEH, and MICHAEL DAVID RINEHART

____________

Appeal 2018-008927
Application 13/157,533
Technology Center 3600
____________

Before JOHN C. KERINS, AMANDA F. WIEKER, and
SEAN P. O’HANLON, Administrative Patent Judges.

O’HANLON, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING
In reply to the Decision on Appeal mailed March 26, 2020,
(“Decision” or “Dec.”), Appellant1 filed a Request for Rehearing pursuant to
37 C.F.R. § 41.52, on June 1, 2020 (“Request” or “Req. Reh’g”), requesting

1 We use the word “Appellant” 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.
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that we reconsider our Decision affirming the rejections of claims 1, 4, 5, 9,
11, 14, 15, and 19. Along with the Request, Appellant filed a statement
asserting that the delay in filing the Request was due to the COVID-19
outbreak.
SUMMARY OF THE DECISION
In the Decision, we did not sustain a rejection of claims 1, 4, 5, 9, 11,
14, 15, and 19 under 35 U.S.C. § 112, second paragraph, as being indefinite.
Dec. 4–7. However, we sustained rejections of claims 1, 4, 5, 9, 11, 14, 15,
and 19 under 35 U.S.C. § 103(a) as being obvious over Soma alone or in
combination with Li or Tryon. Id. at 7–10.
PRINCIPLES OF LAW
Requests for Rehearing are limited to matters misapprehended or
overlooked by the Panel in rendering the original decision. See 37 C.F.R.
§ 41.52 (2019). A request for rehearing “‘must state with particularity the
points believed to have been misapprehended or overlooked by the Board”
and “must specifically recite ‘the points of law or fact which appellant feels
were overlooked or misapprehended by the Board.”’ Ex parte Quist, Appeal
No. 2008-001183, at 2 (BPAI June 2, 2010) (designated precedential)
(quoting 37 C.F.R. § 41.52(a)(1); MPEP § 1214.03).
A request for rehearing may not rehash arguments originally made in
the Brief. A request for rehearing is not an opportunity to merely express
disagreement with a decision. The proper course for an applicant
dissatisfied with a Board decision is to seek judicial review, not to file a
request for rehearing to reargue issues that have already been decided. See
35 U.S.C. §§ 141, 145 (2018).
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ANALYSIS
Independent claim 1 recites a method comprising, in relevant part,
“segmenting a route into segments corresponding to a change in vehicle
speed or road grade, each segment having a constant vehicle speed and road
grade” and “segmenting further at least one of the segments into smaller
segments of equal length.” Appeal Br., Claims App. 1. In the Decision, we
noted that the Specification explains that a route is initially decomposed into
a series of route segments according to a policy such that the beginning of
each segment coincides with a significant change of the vehicle speed or
road grade. Dec. 9 (quoting Spec. ¶¶ 33, 60). We further noted that “the
Specification explains that long route segments should be further divided
into shorter segments to ensure battery state-of-charge control occurs with
sufficient frequency.” Id. (citing Spec. ¶ 61). Although the Specification
states that, as an example, the shorter segments can have an equal length, we
found that
the Specification does not ascribe any importance to such
shorter segments being of equal length. To the contrary, by
describing shorter segments of equal distance as an “example,”
a person having ordinary skill in the art would infer that the
Specification considers that shorter segments of unequal length
would also allow for sufficient battery state-of-charge control.
Id.
Appellant takes issue with our analysis, arguing that we erred in “not
hav[ing] considered the entire Specification regarding the importance
ascribed to the shorter segments being of equal length.” Req. Reh’g 2.
According to Appellant, “[t]he Specification describes that a route is
normally divided into segments of equal length.” Id. (citing Spec. ¶¶ 7,
55, 60).
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Independent claim 1 initially utilizes a segmentation
policy different than the normal segmentation policy (i.e.,
segmentation based on change in vehicle speed or road grade
instead of segmentation into equal lengths) and subsequently
reverts to the normal segmentation policy (i.e., segmentation
into equal lengths) for at least one of the segments (such as long
route segments having a constant vehicle speed and road grade
(Specification paragraph [0061])).
Id. at 3. “Consequently, the importance ascribed by the Specification to
shorter segments being of equal length is that equal length shorter segments
pertain to the normal segmentation policy.” Id.
Initially, we do not agree with Appellant’s contention that the
Specification sets forth a “normal segmentation policy” under which a route
is broken into segments of equal length. See Req. Reh’g 2–3 (citing Spec.
¶¶ 7, 55, 60). Notably, each of the paragraphs cited by Appellant explain
that a route is not broken into segments of equal length: “[t]he route
segmentation is not based on route segments of equal length” (Spec. ¶ 7
(emphasis added)); “the route segmentation in accordance with
embodiments of the present invention is not based on route segments of
equal length” (id. ¶ 55 (emphasis added)); “the resulting segments likely will
not have the same length” (id. ¶ 60 (emphasis added)).
Moreover, even if the Specification disclosed such a “normal
segmentation policy” as suggested by Appellant, Appellant has not
identified any error in our analysis that choosing the length of the smaller
segments would have been an obvious design choice. As we explained,
the Specification explains that long route segments should be
further divided into shorter segments to ensure battery state-of-
charge control occurs with sufficient frequency, but the
Specification does not ascribe any importance to such shorter
segments being of equal length. To the contrary, by describing
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shorter segments of equal distance as an “example,” a person
having ordinary skill in the art would infer that the
Specification considers that shorter segments of unequal length
would also allow for sufficient battery state-of-charge control.
Dec. 9 (emphasis added). Appellant’s assertion that smaller segments of
equal length comport with a “normal segmentation policy” does not address
our findings as set forth in the Decision and, thus, does not apprise us that
we overlooked or misapprehended any matter. Nor does Appellant identify
sufficiently any benefit that would be realized by further segmenting a long
route segment according to a “normal segmentation policy” as opposed to
dividing a long segment into smaller segments of unequal length.
Appellant also argues that, “A reading of Specification paragraph
[0061] may be that this ‘example’ pertains to all of the long route segments
being further segmented as opposed to just one or a few of these long route
segments being further segmented.” Req. Reh’g 3. Appellant fails to
explain with sufficient specificity how this assertion affects our analysis in
the Decision. Accordingly, this argument fails to apprise us that we
overlooked or misapprehended any matter.
CONCLUSION
We have granted Appellant’s Request to the extent that we have
reconsidered our Decision, but we deny the Request with respect to making
any changes thereto.
Outcome of Decision on Rehearing:
Claims
Rejected 35 U.S.C. § Reference(s) Denied Granted
1, 5, 11,
15
103(a) Soma 1, 5, 11,
15

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Claims
Rejected 35 U.S.C. § Reference(s) Denied Granted
4, 14 103(a) Soma, Li 4, 14
9, 19 103(a) Soma, Tryon 9, 19
Overall Outcome 1, 4, 5, 9,
11, 14, 15,
19

Final Outcome of Appeal after Rehearing:
Claims
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 4, 5, 9,
11, 14, 15,
19
112, second
paragraph
Indefiniteness 1, 4, 5, 9,
11, 14, 15,
19
1, 5, 11,
15
103(a) Soma 1, 5, 11, 15
4, 14 103(a) Soma, Li 4, 14
9, 19 103(a) Soma, Tryon 9, 19
Overall Outcome
1, 4, 5, 9,
11, 14, 15,
19

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). See
37 C.F.R. § 1.136(a)(1)(iv).
DENIED