Ex Parte 7389836 et al

Patent Trial and Appeal Board

Jul 31, 2017

90013575 (P.T.A.B. Jul. 31, 2017)

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.
90/013,575 08/31/2015 7389836 GTEKPR.009X2 9600
94740 7590 08/01/2017
Winthrop & Weinstine, P.A.
Capella Tower, Suite 3500
225 South Sixth Street
Minneapolis, MN 55402
EXAMINER
ENGLISH, PETER C
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
08/01/2017 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 Dane Technologies, Inc.
____________________

Appeal 2017-007660
Reexamination Control 90/013,575
Patent US 7,389,836 B21
Technology Center 3900
____________________

Before DANIEL S. SONG, JOSIAH C. COCKS, and BRETT C. MARTIN,
Administrative Patent Judges.

MARTIN, Administrative Patent Judge.

DECISION ON APPEAL

1 Issued to Daniel T. Johnson et al. on June 24, 2008 (hereinafter the ’836
patent).
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Reexamination Control 90/013,575
Patent US 7,389,836 B2

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STATEMENT OF CASE
The Patent Owner appeals under 35 U.S.C. §§ 134(b) and 306 from
the Examiner’s rejection of claims 1-12. The Examiner also originally
rejected claims 13-23 on numerous grounds, but withdrew all rejections
other than those stated below because the Patent Owner cancelled claims 13-
23. See Ans. 12-13. We have jurisdiction under 35 U.S.C. §§ 134(b) and
306.
We are informed that this appeal is related to an appeal of ex parte
reexamination 90/013,576, IPR2013-00305, IPR2013-00338, and Dane
Techs., Inc. v. Gatekeeper, Inc. Civil Action No. 0:12-cv-02730-ADM-JJK
(D. Minn.). App. Br. 1.
We AFFIRM.

THE INVENTION
The Patent Owner’s claims are directed generally to “devices and
methods for assisting in the retrieval of wheeled shopping carts in parking
lots.” Spec. col. 1, ll. 14-16. Claim 1, reproduced below, is illustrative of
the claimed subject matter:
1. A shopping cart retriever comprising:
an electric motor;
a drive system powered by the electric motor;
a controller that controls power to the electric motor and
includes a first power limit and a second power limit; and
a throttle control in communication with the controller,
wherein the first power limit is the controller's normal power
limit that results when the controller self-limits its maximum
power output through a sensing feature of the controller that
exists to prevent damage to the controller,
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wherein the second power limit is selectable and limits the
controller's maximum power output to a level that is less than
that of the first power limit, and
wherein the sensing feature is a temperature sensing
feature that senses a temperature of the controller.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Konrad
Schugt
US 4,423,362
US 6,220,379
Dec. 27, 1983
Apr. 24, 2001

“S-Drive Scooter Control System: Operation, Installation, & Programming,”
SK76745/1, 2002 by PG Drives Technology (hereinafter “PG S-Drive”).
“I-Drive Permanent Magnet Control System: Operation, Installation, &
Programming,” SK76977/1, 2003 by PG Drives Technology (hereinafter
“PG I-Drive”).

REJECTIONS
The Examiner made the following rejections:
Claims 1-4 and 7 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by PG S-Drive. Ans. 2.
Claims 1-4 and 7 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by PG I-Drive. Ans. 5.
Claims 1-12 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over PG S- or I-Drive and Shugt. Ans. 8.
Claim 12 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over PG S- or I-Drive, Shugt, and Konrad. Ans. 9.

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ANALYSIS
The Patent Owner essentially makes three arguments against the
remaining rejections.2 In the first two, the Patent Owner asserts that neither
Current Limit Min nor Current Foldback Threshold is a second power limit
as claimed. The Examiner at least partially agrees with both of these
arguments, but then further explains how the Current Foldback Threshold
works in conjunction with the Current Foldback Level to meet the second
power limit claim limitation. Ans. 14-18. The Patent Owner and the
Examiner continue to disagree regarding the Current Limit Min’s
applicability to the claims. Reply Br. 1-2.
Regardless of the Examiner’s agreement with the Patent Owner on the
points above, the Examiner does not rely solely on Current Foldback
Threshold as teaching the claimed second power limit, but also asserts that
Current Foldback Level plays a role in determining the “reduced current
limit (e.g., 30 A) that reads on the claimed second power limit.” Ans. 17.
According to the Patent Owner, this reliance on Current Foldback Level
amounts to a new grounds of rejection and that Patent Owner “has been
provided with no opportunity to address the examiner’s position.” Reply Br.
4. The Patent Owner goes on to assert an inability “to include any additional
factual evidence” to rebut this alleged new ground. Id.
Contrary to the Patent Owner’s arguments, however, we see no
credible basis for the assertion that this amounts to a new ground of
rejection. In the Final Rejection dated April 11, 2016, which the Examiner

2 The Patent Owner argues the teachings of PG I- and S-Drives together and
we likewise treat them as having similar disclosures for the purpose of the
rejections.
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essentially copies verbatim in the Answer, the Examiner lists the following
regarding the programmable parameters of PG I- and S-Drive:
A current fold-back threshold that is adjustable between a low
value of 1 A and a high value equal to the presently-set
maximum drive current limit, a current fold-back time adjustable
between a low value of 0 seconds and a high value of 250
seconds, a current fold-back level (i.e., reduced current limit)
adjustable between a low value of 0% of the presently-set
maximum drive current limit and a high value of 100% of the
presently-set maximum drive current limit, and a motor cooling
time adjustable between a low value of 0 seconds and a high
value of 3,825 seconds. With the maximum drive current limit
set at 60 A, the current fold-back threshold can be set at 40 A,
the current fold-back time can be set at 30 seconds, the current
fold-back level (i.e., reduced current limit) can be set at 50% (i.e.,
50% of 60A, or 30 A), and the motor cooling time can be set at
150 seconds. This enables the controller to operate the traction
motor at an elevated drive current (such as the 60 A maximum
drive current) that exceeds the 40 A current fold-back threshold
for a first limited period of 30 seconds (the current fold-back
time). Thereafter, the controller reduces the current limit to the
current fold-back level of 30 A (50% of 60 A) for a second
limited period of 150 seconds (the motor cooling time). In this
way the motor is protected from overheating. See section 8.3 on
pp. 75-77.
Final Action 4-5 (emphasis added).
While the Patent Owner may not have fully understood the rejection3
and may have focused on other aspects thereof, it is clear from the rejection
as stated in the Final Action at least as far back as April of 2016 that the

3 The Patent Owner claims that the Examiner’s “actions in this case have
been unclear and confusing” and that Patent Owner “was unclear which
feature of the PG S-Drive manual or PG I-Drive manual the examiner was
relying on as teaching the claimed ‘first power limit.’” Reply Br. 2-3.
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Examiner was using the Current Foldback Level as a component of the
second power limit as claimed. It appears that the Patent Owner was
generally successful in convincing the Examiner of various errors in the
rejections, where argued, but simply put, this aspect of the rejection was not
previously argued despite being a part of the rejection the entire time. Given
that the rejection clearly states that the Current Foldback Level is related to
the reduced current limit, we cannot agree that this amounts to a new ground
of rejection.
The Examiner’s more complete explanation of the Current Foldback
Level’s role appears to be in response to the Patent Owner’s previous
(apparently correct) argument that Current Foldback Threshold is
insufficient by itself to meet the second power limit as claimed. Rather than
further explain any flaw in the expanded explanation relating to Current
Foldback Level’s role, the Patent Owner has simply chosen to argue that it
has been blindsided by this explanation and end its brief there. Given that it
is clear that Current Foldback Level has always been part of the rejection,
we are essentially left with an unrebutted, and seemingly correct position as
explained by the Examiner in the Answer (see Ans. 4-5, 15-18). In that
respect, Patent Owner had ample opportunity during the course of
prosecution to address or otherwise challenge the Examiner’s position that
Current Foldback Level and Threshold together with Current Foldback
Temperature satisfy the claimed second current limit, but did not do so. We
discern no error in the Examiner’s explanation on its face and, without
argument as to why it may be incorrect, see no basis to overturn the
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Examiner’s rejection. Accordingly, we are not persuaded that the Examiner
erred in grounds 1 and 2.
The Patent Owner makes no separate argument relating to the
obviousness rejections in grounds 3 and 4 other than to assert that the
secondary references fail to cure the alleged deficiencies of grounds 1 and 2
based on PG I- and S-Drive. App. Br. 12-14. Because we do not agree that
the Patent Owner has persuasively rebutted the Examiner’s rejections in
grounds 1 and 2, we likewise sustain the obviousness rejections.

DECISION
For the above reasons, we AFFIRM the Examiner’s decision to reject
claims 1-12.
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) (2009).

AFFIRMED