Ex Parte Gale et al

Patent Trial and Appeal Board

Apr 25, 2017

12488858 (P.T.A.B. Apr. 25, 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.
12/488,858 06/22/2009 Allan Roy Gale 81183068 1450
28395 7590 04/27/2017
RROOKS KTTSHMAN P C /FfTET EXAMINER
1000 TOWN CENTER EVANS, BRYAN A
22ND FLOOR
SOUTHFIELD, MI 48075-1238 ART UNIT PAPER NUMBER
3618
NOTIFICATION DATE DELIVERY MODE
04/27/2017 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 ALLAN ROY GALE, MICHAEL W. DEGNER, and
PAUL THEODORE MOMCILOVICH
Appeal 2014-004980
Application 12/488,858
Technology Center 3600
Before BRANDON J. WARNER, LEE L. STEPINA, and
RICHARD H. MARSCHALL, Administrative Patent Judges.
MARSCHALL, Administrative Patent Judge.
DECISION ON APPEAL
Allan Roy Gale et al. (Appellants) seek our review under 35 U.S.C.
§ 134 of the Examiner’s final decision rejecting claims 1—3, 5, 7—16, 18, and
20. Appeal Br. 1. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
Appeal 2014-004980
Application 12/488,858
THE CLAIMED SUBJECT MATTER
Appellants’ claimed subject matter “relates to supplying oil to
lubricate and cool components in a hybrid electric vehicle.” Spec. 1:7—9.
Claims 1, 10, and 18 are independent. Claim 1 is illustrative of the claimed
subject matter and is reproduced below.
1. A method to control supply in a lubricating oil circuit
having a transmission, an electric motor, and a mechanical
pump, the method comprising:
controlling a speed of an electric pump coupled to the
lubricating oil circuit in response to a desired fluid flow based
on a greater of a first oil quantity to provide lubrication to the
transmission and a second oil quantity to provide cooling to the
electric motor when the mechanical pump is inactive.
Claims App. 1.
THE EVIDENCE
The Examiner relied upon the following prior art references in
rejecting the claims on appeal:
O’Sullivan US 3,163,042 Dec. 29, 1964
Bartolazzi US 6,213,061 B1 Apr. 10, 2001
Day US 2009/0111637 A1 Apr. 30, 2009
Kothari US 2009/0107755 A1 Apr. 30, 2009
THE REJECTIONS
Appellants seek review of the following rejections:
1. Claims 1—3, 5, 7, 18, and 20 under 35 U.S.C. § 103(a) as
unpatentable over Day, Kothari, and Bartolazzi.
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2. Claims 10-16 under 35 U.S.C. § 103(a) as unpatentable over
Kothari and Bartolazzi.
3. Claims 8 and 9 under 35 U.S.C. § 103(a) as unpatentable over Day,
Kothari, and O’Sullivan.
ANALYSIS
Independent Claim 1
Regarding claim 1, the Examiner found that Day discloses a method
to control the supply of lubricating oil in a circuit, including controlling an
electric pump coupled to the circuit in response to a desired flow as claimed.
Final Act 2. The Examiner also found that Day does not disclose controlling
the speed of an electric pump and operating the pump when the mechanical
pump is inactive. Id. The Examiner found that Bartolazzi discloses
controlling the speed of an electric pump, Kothari discloses operating an
electric pump when a mechanical pump is inactive, and determined that it
would have been obvious to modify Day to include these aspects of
Bartolazzi and Kothari. Id. at 2—3.1 * 3In addition, the Examiner found that
1 After making findings regarding Day and Bartolazzi, the Examiner
determined that it would have been obvious “to modify Kothari by further
controlling the speed of an electric pump” as disclosed by Bartolazzi. Final
Act. 2, | 5 (emphasis added). Because this finding appears directly after the
findings regarding Day and Bartolazzi, and prior to any mention of Kothari,
we interpret the Examiner’s reference to Kothari as an inadvertent error. It
is apparent that the Examiner, in paragraph 5 of the Final Office Action,
made a determination that it would have been obvious to modify Day rather
than Kothari in the manner specified. See id.
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“meeting a required line pressure” as in Day “inherently meets a required
quantity as an increase in pressure results in an increase in flow.” Ans. 11.
Appellants make several arguments in relation to the rejection of
claim 1, but, for the foregoing reasons, Appellants’ arguments do not
establish that the Examiner erred in rejecting claim 1. First, Appellants
argue that Day fails to disclose a method that “controls an electric pump in
response to a desired fluid flow based on the greater of a first oil quantity to
provide lubrication to the transmission and a second oil quantity to provide
cooling to the electric motor, as required by claim 1.” Appeal Br. 6. This
argument points to Day’s use of monitoring various speeds and a look-up
table in its method, but does not address Figure 6 or claims 1 and 4 of Day,
which the Examiner relied on in the rejection. Compare Appeal Br. 6, with
Final Act. 2. Day’s use of speed data as part of its method, standing alone,
does not establish that Day fails to disclose the relevant limitation, and the
lack of analysis directed to the evidence relied on by the Examiner similarly
does not apprise us of error in the Examiner’s rejection.
Second, Appellants argue that, although Kothari may teach operating
an auxiliary pump, it does not teach controlling a speed of an electric pump
when the mechanical pump is inactive, as required by claim 1. Id. at 8.
Appellants do not address why Kothari’s paragraph 53, relied on by the
Examiner, fails to disclose this limitation. Paragraph 53 discloses that “[i]n
embodiments where the main hydraulic pump is directly driven [by the
engine], and wherein an engine running/engine stopped strategy is
employed,” the electric pump can be used to supply hydraulic pressure.
Kothari | 53; see also id. at | 50 (electric pump can be activated in the event
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of “power loss of a hydraulic pump”). In our view, Kothari’s disclosure
adequately supports the Examiner’s finding that Kothari discloses operation
of the electric pump when the mechanical pump is inactive.
As part of this same argument regarding Kothari, Appellants assert
that Kothari selectively enables an electric machine cooling flow based on
temperatures and does not teach controlling electric pump speed in response
to a desired fluid flow as claimed. Appeal Br. 7—8; see also Reply Br. 1—2
(arguing that Kothari fails to teach limitations in claim 1, including
providing fluid flow on a comparative basis as required by claim 1). We
need not address these arguments because the Examiner did not rely on
Kothari as disclosing these limitations in the rejection of claim 1. Final Act.
3. The Examiner relied on Kothari only for teaching operation of the
electric pump “when the mechanical pump is inactive” in the rejection of
claim 1. Id.
Third, Appellants argue that the Examiner failed to supply an
adequate rationale for combining Day and Kothari, but Appellants appear to
base the argument on the assumption that Day and Kothari disclose a system
where “hydraulic fluid always flows” based on the hydraulic pump. Appeal
Br. 8. As stated above, Kothari contemplates operation of the system when
the hydraulic pump does not supply pressure to the system.2 Moreover, Day
and Kothari both disclose methods of delivering lubricating oil in a circuit
using an electric pump. The Examiner concluded that it would have been
2 This argument may also assume that the Examiner’s rejection relies on
Kothari as disclosing control of the electric pump speed, but as stated above,
we view the reference to Kothari in that sentence of the rejection as a
typographical error. See supra n. 1.
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obvious to modify Day to operate the electric pump when the mechanical
pump is inactive “in order to ensure that the hydraulic pressure is maintained
in the event that the engine has stopped.” Final Act. 3. Appellants have not
directly addressed this conclusion or suggested that the advantage noted by
the Examiner would not be achieved by modifying Day’s method with the
teaching of Kothari. Under these circumstances, we are not persuaded that
the combination of these two closely related references amounts to
impermissible hindsight, as Appellants suggest. See Appeal Br. 8—9.
Fourth, Appellants allege that “there is no motivation to operate the
electric pump of Day and Kothari in the fashion taught by Bartolazzi”
because Day and Kothari disclose control in response to line pressure, while
Bartolazzi discloses control in response to temperature. Id. at 6, 9. As the
Examiner points out, the rejection relied on Bartolazzi “merely ... to teach
controlling the speed of the pump in response to a required increase in
pumping,” not “to teach activating a pump in response to line pressure as
this limitation is already disclosed by Day.” Ans. 10. We agree with the
Examiner that the rejection does not rely upon Bartolazzi’s control in
response to temperature, and Bartolazzi’s reference to temperature does not
render its teaching of controlling the speed of the electric pump incompatible
with the teachings of Day or Kothari. See Final Act. 2.
Fifth, Appellants argue that the Examiner’s proposed combination still
fails to disclose all of the limitations of the claim because Kothari and Day
control in response to line pressure, which “does not inherently meet a
required quantity or flow” as required by claim 1. Appeal Br. 9-10. Claim
1 does refer to controlling the electric pump speed “in response to a desired
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flow based on a greater of a first oil quantity . . . and a second oil quantity,”
but the use of “quantity” in the claims must be read in light of the
specification to ascertain its meaning. The specification only refers to
“quantity” in this context in the Summary section and original claims, but
that language merely repeats or paraphrases the claim language. See Spec.
2:11—3:14, 15:6—19:1. The Detailed Description portion of the specification
also fails to define the term or mention a specific quantity of lubrication
needed for various portions of the system. Instead, the specification
discusses the use of operating parameters used “to infer flow rate and
pressure in the fluid circuit.” Id. at 8:20-23. The specification also notes
that, as part of the determination of lubrication requirements, “sufficient
lubrication can be based on pressure in place of flow rate.” Id. at 9:16—10:4.
In short, the specification appears to employ determination of pressure
and/or flow rate as indicative of the lubrication amount, or “quantity,”
required to provide lubrication to system components.
With this backdrop, we are not convinced that Day’s method,
controlling an electric pump in response to line pressure, fails to address the
“quantity” limitation of claim 1 as alleged by Appellants. Appellants do not
adequately explain how Day’s method would be distinguishable from the
teaching in the specification that the claimed quantities, or sufficient
lubrication to meet the demands of system components, may be determined
using pressure. Similarly, we are not persuaded that the Examiner erred in
finding that Day inherently discloses this claim requirement given the
similarity in Day’s use of the line pressure and the method disclosed in the
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specification. See Ans. 11 (finding meeting a required line pressure
inherently meets a required quantity).
Based on the foregoing, we sustain the rejection of claim 1.
Dependent Claim 2
Claim 2 depends from claim 1 and further requires “commanding the
electric pump to provide a shortfall quantity.” Claims App. 1. The
Examiner relied on Day as modified by Kothari in the rejection of claim 2.
Final Act. 3. Appellants argue that Kothari fails to disclose this limitation
because “Kothari discloses controlling line pressure” and “[tjhere is no
disclosure or suggestion of commanding the electric pump to provide a
shortfall quantity as claimed.” Appeal Br. 11. Appellants’argument relies
on the same unpersuasive argument rejected above—that the reference to
“quantity” in the claims requires something more than basing the system
needs on line pressure. That argument fails here for the same reasons stated
above. Moreover, Kothari discloses reference to line pressure as well as
flow rate, and Appellants never argue that disclosing flow rate fails to
disclose the claimed quantity. See Kothari || 50, 53; Final Act. 3; see also
Appeal Br. 10 (suggesting interchangeability of “quantity” and “flow” in
context of claim 1 argument). Accordingly, we sustain the rejection of claim
2.
Dependent Claims 7—9 and 14
Claim 7 depends from claim 1 and requires “wherein said second
quantity is based on temperature in the electric motor as determined from a
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resistance of windings in the motor.” Claims App. 1. The Examiner relied
on paragraph 49 of Kothari as disclosing the “resistance of windings in the
motor” aspect of claim 7. Final Act. 4. Appellants argue that Kothari fails
to disclose “determining temperature based on resistance of the windings”
and merely suggests determining temperature “using sensors known in the
art.” Appeal Br. 11. We agree with Appellants. Kothari merely mentions
sensors “known in the art,” but does not disclose a specific placement for
any sensors or otherwise suggest using “known” sensors to monitor the
resistance of windings in the motor, as the claim requires, as opposed to
monitoring some other portion of the motor or another known way of
determining temperature. Kothari 149. We therefore do not sustain the
rejection of claim 7.
Claim 8 depends from claim 7, claim 9 depends from claim 8, and
therefore claims 8 and 9 contain the same limitations as claim 7. Claims
App. 2. Claim 14 includes similar limitations to claim 7, including
“measuring the resistance of windings of the electric motor” and “estimating
the temperature in the electric motor based on the resistance.” Claims App.
2. The Examiner made similar findings relying on Kothari in the rejection
of claim 14, and in response Appellants made the same arguments raised
with respect to claim 7. Final Act. 7; Appeal Br. 14. We do not sustain the
rejection of claims 8, 9, and 14 for the same reasons discussed above with
respect to claim 7.
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Independent Claim 18
System claim 18 includes several limitations that parallel method
claim 1, and also requires an “electronic control unit commanding the
electric pump to continuously increase electric pump speed” under certain
conditions. Claims App. 3^4. Similar to claim 1, the Examiner relied on the
combination of Day, Kothari, and Bartolazzi in rejecting claim 18. Final
Act. 4—5. In the appeal of claim 18, Appellants first rely on the same
arguments made with respect to claim 1, and we reject those arguments for
the same reasons discussed above in the context of claim 1.
Appellants also argue that Bartolazzi fails to disclose “continuously
increasing pump speed” as required by claim 18. Appeal Br. 11—12. More
specifically, Appellants argue that Bartolazzi discloses electric pump
operation “controlled along curve Q for the lowest total power consumed by
a pump 6 and electric fan 5 which is clearly different from continuously
increasing pump speed as disclosed and claimed.” Id. We agree that
Bartolazzi discloses operation along a curve Q, but disagree that Bartolazzi
fails to disclose continuously increasing pump speed when asked to do so
based on demands of the system. Bartolazzi discloses initiation of an
increase in power to the electric pump when triggered to do so (by engine
temperature readings that are higher than a reference value. Bartolazzi 3:7—
19. We agree with the Examiner that this increase in power will result in an
increase in flow to the fluid circuit, a finding not contested by Appellants.
Final Act. 5; Appeal Br. 11—12. This same passage from Bartolazzi
discloses that, after the increase in power, the working point moves along
the curve Q, meaning that if the engine temperature reading remains higher
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than the reference temperature, the power to the pump will be increased
again to meet the cooling demands of the system, i.e., continuously
increased until the demands are met. Bartolazzi 3:7—19. The fact that
Bartolazzi may seek to minimize total power consumed does not indicate
that the disclosed system does not continuously increase the power to pump
when necessary.
Based on the foregoing, we sustain the rejection of claim 18.
Claim 10
Claim 10 requires the step of “commanding an electric pump coupled
to the fluid circuit to continuously increase flow to the fluid circuit until a
lubricant quantity provided to the first component satisfies a desired
lubricant quantity and a temperature in the second component satisfies a
predetermined threshold temperature.” Claims App. 2. The Examiner found
that Kothari discloses the “commanding” step of claim 10, and equates
satisfying “lubrication requirements” in paragraph 50 of Kothari with the
“lubricant quantity” required by claim 10. Final Act. 6. The Examiner
found that Kothari does not disclose “commanding an electric pump (110)
coupled to the fluid circuit to continuously increase flow to the fluid circuit.”
Id. The Examiner found that “Bartolazzi discloses commanding an electric
pump (6) coupled to the fluid circuit to continuously increase flow to the
fluid circuit (by increasing the power supplied to the electric pump, C3, L7-
19).” Id. The Examiner determined that it would have been obvious “to
modify Kothari by further commanding an electric pump” to continuously
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increase flow as claimed “to minimize the amount of power required to
reject heat from the engine.” Id.
Appellants argue that Kothari’s electric pump seeks to maintain line
pressure and, as such, does not disclose commanding an electric pump to
increase flow until a certain quantify of lubricant satisfies a predetermined
threshold. Appeal Br. 12. Similar to the argument with respect to Day,
Appellants argue that Kothari’s method of maintaining line pressure “does
not inherently meet a required quantity or flow.” Id. at 10. Appellants also
assert that Bartolazzi fails to remedy the lack of teaching from Kothari. Id.
at 12-13.
Appellants arguments with respect to claim 10 largely mirror those
addressed above with respect to claims 1, 2, and 18, and fail to persuade us
that the Examiner erred in the rejection of claim 10. First, as discussed
above in the context of claim 1, the claimed “quantity” of claim 10, when
read in light of the specification, can be met by a system such as Kothari’s
based on maintaining line pressure. Moreover, as discussed in the context of
claim 2, Kothari discloses utilizing the flow rate within the system, not just
line pressure, and Appellants never argue that disclosing flow rate fails to
disclose the claimed quantity. See Kothari H 50 (referring to “flow
requirements” and “lubrication requirements”), 53 (discussing relationship
between flow and pressure); Final Act. 6; see also Appeal Br. 10 (suggesting
interchangeability of “quantity” and “flow” in context of claim 1 argument).
Appellants’ arguments have not adequately distinguished the method
claimed in claim 10 and disclosed in the specification from that disclosed on
Kothari in this respect. Appellants’ arguments regarding Bartolazzi and the
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alleged failure to disclose “continuously increasing” the pump speed have
been addressed above in the context of claim 18. For the reasons stated
above, we are not persuaded that the Examiner erred in the findings related
to Bartolazzi.
Based on the foregoing, we sustain the rejection of claim 10.
Dependent Claim 15
Claim 15 depends from claim 10 and requires “commanding the
electric pump to continuously decrease flow” under certain conditions.
Claims App. 3. The Examiner relied on Kothari and Bartolazzi in the
rejection of claim 15. See Final Act. 6—7. Appellants incorporate previously
made arguments that Kothari and Day, alone or in combination fail to
disclose the limitation of claim 15 because “Kothari teaches control of the
pump based on line pressure and Bartolazzi teaches control of the pump to
coordinate with control of an electric fan to reduce total electric power
consumption.” Appeal Br. 14. We considered these arguments above and
found them lacking. Appellants do not make further arguments that are
directed to the specific limitations and findings related to claim 15.
Accordingly, we sustain the rejection of claim 15.
Dependent Claims 3, 5, 11—13, 16, and 20
Claims 3 and 5 depend from claim 1, claims 11—13 and 16 depend
from claim 10, and claim 20 depends from claim 18. Claims App. 1—4.
Appellants do not make separate arguments in support of these claims that
go beyond the arguments made with respect to the respective independent
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claims from which they depend. Appeal Br. 10, 12. Accordingly, we
sustain the rejection of claims 3, 5, 11—13, 16, and 20 for the same reasons
discussed above with respect to claims 1,10, and 18.
DECISION
We affirm the decision of the Examiner to reject claims 1—3, 5, 10—16,
18, and 20 under 35 U.S.C. § 103(a).
We reverse the decision of the Examiner to reject claims 7—9 and 14
under 35 U.S.C. § 103(a).
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-IN-PART
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