Ex Parte Harris

Patent Trial and Appeal Board

Dec 19, 2016

12402199 (P.T.A.B. Dec. 19, 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.
23348-002001 7261
EXAMINER
KISWANTO, NICHOLAS
ART UNIT PAPER NUMBER
3669
NOTIFICATION DATE DELIVERY MODE
12/402,199 03/11/2009
75589 7590 12/21/2016
Matheson Keys Daffer & Kordzik PLLC
7004 Bee Cave Rd.
Bldg. 1, Suite 110
Austin, TX 78746
Warner Olan Harris
12/21/2016 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):
kkordzik@ mathesonkeys.com
claney @ mathesonkeys .com
kdaffer @ mathesonkeys. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WARNER OLAN HARRIS
Appeal 2015-000330
Application 12/402,199
Technology Center 3600
Before KEVIN W. CHERRY, CYNTHIA L. MURPHY, and
KENNETH G. SCHOPFER, Administrative Patent Judges.
MURPHY, Administrative Patent Judge.
DECISION ON APPEAL
The Appellant1 appeals under 35 U.S.C. § 134 from the Examiner’
rejections of claims 1—4, 7—9, 13, 15—18, 21—23, and 26-40. We have
jurisdiction over this appeal under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 The Appellant identifies the real party in interest as “Clean Emissions
Technology, Inc.” (Appeal Br. 1.)
Appeal 2015-000330
Application 12/402,199
STATEMENT OF THE CASE
The Appellant’s invention relates to operation of a vehicle “to
maximize the reduction in emissions” and “obtaining credit therefrom.”
(Spec. 1, lines 12—15.)
1. A method of operating a vehicle having an electric
traction system (ETS) and an internal combustion engine (ICE)
and corresponding ETS and ICE operation modes; comprising:
generating vehicle location data using a GPS system
physically coupled to the vehicle;
sending from the vehicle the vehicle location data to a
remote system operating an emission credit process;
the vehicle receiving from the remote system an
indication that emission credits are available for the vehicle as a
function of the vehicle location data if the vehicle operates in
the ETS operation mode within a specified geographical
location;
enabling a system controller in the vehicle to switch
between the ICE and ETS operation modes as a function of the
vehicle location data, the indication of the available emission
credits, and parametric measurements of an operation of the
vehicle; and
sending from the vehicle the parametric measurements of
the operation of the vehicle to the remote system while the
vehicle is operating in the ETS operation mode.
Illustrative Claim2
Evidence
Fleming US 2003/0055665 A1
US 7,062,371 B2
US 7,130,766 B2
US 2007/0181355 A1
Mar. 20, 2003
June 13, 2006
Oct. 31,2006
Aug. 9, 2007
Gault
Tanase
Harris
2 This illustrative claim is quoted from the Claims Appendix (“Claims
App.”) set forth on pages 17—22 of the Appeal Brief.
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Application 12/402,199
Rejections
I. The Examiner rejects claims 1—4, 7—9, 13, 15—18, 21—23, 26, 27,
and 29-40 under 35 U.S.C. § 103(a) as unpatentable over Gault and Tanase.
(Final Action 2.)
II. The Examiner rejects claims 28 and 32 under 35 U.S.C. § 103(a)
as unpatentable over Gault, Tanase, and Fleming. (Final Action 6.)
ANAFYSIS
Claims 1,15, 26, and 31 are the independent claims on appeal, with
the rest of the claims on appeal (i.e., claims 2-4, 7—9, 13, 16—18, 21—23,
27—30, and 32 40) depending therefrom. (Claims App.) The claims on
appeal are directed to a method and systems involving a vehicle having “an
electric traction system (ETS),” “an internal combustion engine (ICE),” and
“corresponding ETS and ICE operation modes.” (Id.)
Independent Claim 1
Independent claim 1 recites a “controller” that is enabled to “switch
between the ICE and ETS operation modes” as a function of “vehicle
location data.” (Claims App.) The Examiner finds that Gault teaches that a
hybrid vehicle can be “switched to electric mode from an engine operating
mode” based on “location specific emission parameters” determined from
“emission compliance zones.” (Final Action 2—3.)
The Appellant argues that, although Gault discloses initiating the
modification of vehicle functions, these modifications “are limited to
modifications of the operation of the internal combustion engine.” (Appeal
Br. 9.) We are not persuaded by this argument because Gault teaches that its
location-specific-emission information can include “a fuel selection
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parameter that modifies which fuel source the mobile vehicle is using.”
(Gault, col. 7, lines 20-22.) And Gault specifically teaches that fuel types
can include “gasoline” and “electricity.” {Id., col. 8, lines 12—13.) Hence,
Gault teaches selecting an electric fuel source (i.e., an electric mode) over a
gasoline fuel source (i.e., an engine mode) based upon a specific location of
the vehicle.
The Appellant also argues that the Examiner incorrectly assumes that
“a hybrid vehicle is well known to have ICE and ETS operation modes.”
(Reply Br. 4.) We are not persuaded by this argument because the Examiner
finds that, when Gault’s hybrid vehicle “switches fuel sources between
electricity and gasoline,” this “would read upon Appellant’s ICE and ETS
modes.” (Answer 6.) The Appellant does not adequately address why,
when Gault’s hybrid vehicle is using a gasoline fuel source, movement of
the vehicle would not be a direct result of generation of a motive force by an
engine; and why, when Gault’s hybrid vehicle is using an electric fuel
source, movement of the vehicle would not be a direct result of generation of
a motive force by an electric motor.
Independent claim 1 further recites that the switch between ICE and
ETS operation modes must also be a function of “an indication that emission
credits are available for the vehicle.” (Claims App.) The Examiner finds
that Tanase teaches a system of “ecological driving evaluation” that
“provides emission credits to hybrid vehicles that operate in electric mode.”
(Final Action 3.) And the Examiner determines that it would have been
obvious, in view of the teachings of Tanase, for Gault’s emission-related
information to identify available emission credits. (See id.)
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The Appellant argues that the prior art does not teach “to switch
between ICE and ETS operating modes to obtain points or credits.” (Appeal
Br. 9.) We are not persuaded by this argument because, as discussed above,
Gault teaches switching between engine and electric operating modes based
upon emission-related information and Tanase teaches the awarding of
emission-related credits. The Appellant does not adequately address why
one of ordinary skill in the art, armed with these teachings, would not infer
that Gault’s emission-related information could comprehend emission-
related credits.
Moreover, we agree with the Examiner’s implication that the content
of Gault’s emission-related information does not translate into structural
differences or functional distinctions between the claimed method and that
disclosed by Gault. (See Answer 11.) The Appellant asserts that its system
controller “has either software or hardware, or a combination of the two”
that is “configured to perform” the actions recited in independent claim 1.
(Reply Br. 6.) However, the Appellant does not explain, and we do not see,
how or why such software and/or hardware would differ depending upon the
content of Gault’s emission-related information. Rules regarding the
existence, acceptance, availability, and/or awarding of emission credits
would depend upon “cooperation of groups of people” and “[otherwise, said
credits are merely stored bits which the logic circuitry accumulates
according to its programming.” (Answer 17.)
Accordingly, the Appellant does not establish that the Examiner errs
in determining that the method recited in independent claim 1 would have
been obvious over the combined teachings of Gault and Tanase.
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Thus, we sustain the Examiner’s rejection of independent claim 1
under 35 U.S.C. § 103(a) as unpatentable over Gault and Tanase
(Rejection I).
Independent Claims 15, 26, and 31
Independent claim 15 recites a “controller” that “switches between the
ICE and ETS operation modes” in response to receiving data corresponding
to “vehicle location data” and signals that “emission credits are available for
the vehicle.” (Claims App.) Independent claims 26 and 31 each recites a
similar controller. (Id.) As indicated above, the Examiner finds that, when
Gault’s hybrid vehicle “switches fuel sources between electricity and
gasoline,” this “would read upon Appellant’s ICE and ETS modes.”
(Answer 6.)
The Appellants argue that independent claims 15, 26, and 31 recite
additional limitations regarding the ICE and ETS operation modes and that
the Examiner does not specifically address these limitations. (See Appeal
Br. 10-11.) Specifically, independent claims 15, 26, and 31 also recite that,
in the ICE operational mode, “movement of the vehicle is a direct result of
generation of a motive force by the ICE” and that, in the ETS mode,
“movement of the vehicle is a direct result of generation of motive force by
the ETS.” (Claims App.) We are not persuaded by this argument because,
as discussed in our analysis of independent claim 1, the Appellant does not
explain why, when Gault’s hybrid vehicle is using a gasoline fuel source,
movement of the vehicle would not be a direct result of generation of a
motive force by an engine and/or why, when Gault’s hybrid vehicle is using
an electric fuel source, movement of the vehicle would not be a direct result
of generation of a motive force by an electric motor.
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Independent claim 31 additionally recites “a comparison of the
geographical location of the vehicle to a stored data structure indicating
coordinates of boundaries for emission non-attainment areas to determine
whether the ETS operation mode occurred in non-attainment areas.”
(Claims App.) The Examiner finds that Gault’s “emission compliance
zones” are equivalent to the claimed non-attainment areas. (See Answer 13.)
The Appellant does not persuasively challenge this finding by the Examiner
or otherwise address why, in view of this teaching by Gault, the prior art
does not show or suggest the comparison recited in independent claim 31.
(See Appeal Br. 11; see also Reply Br. 7—10.)
Accordingly, the Appellant does not establish that the Examiner errs
in determining that the systems recited in independent claims 15, 26, and 31
would have been obvious over the combined teachings of Gault and Tanase.
Thus, we sustain the Examiner’s rejection of independent claims 15,
26, and 31 under 35 U.S.C. § 103(a) as unpatentable over Gault and Tanase
(Rejection I).
Dependent Claims 3, 4, 8, 13, 17, 18, 22, and 27
The Appellant does not argue dependent claims 3,4, 8, 13, and 22
separately from the independent claims (see Appeal Br. 10-15) and so they
fall therewith. As for dependent claims 18 and 27, the Appellant’s
arguments reiterate or refer to the issues discussed above for the independent
claims (see id. at 11) and so they also fall therewith.
Thus, we sustain the Examiner’s rejection of dependent claims 3, 4, 8,
13, 17, 18, 22, and 27 under 35 U.S.C. § 103(a) as unpatentable over Gault
and Tanase (Rejection I).
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Dependent Claims 2 and 16
Dependent claims 2 and 16 require “optimizing fuel for the ICE and
stored electrical potential energy for the ETS.” (Claims App.) The
Examiner finds that “optimizing fuel and electricity” is an “obvious goal.”
(Final Action 5.)
The Appellant argues that the Examiner merely asserts that such
optimization “would be desirable” and this assertion is “a mere conclusory
statement.” (Appeal Br. 12.) We are not persuaded by this argument
because the Appellant does not argue that this assertion is incorrect and/or
otherwise explain why a fuel-optimizing goal would not be on the mind of
one of ordinary skill in the art when modifying Gault’s system. We further
note that Gault teaches “tailoring] fuel consumption” according to the
location and availability of “refueling” stations or, in other words,
optimizing the use of fuel and electrical energy. (Gault, col. 1, lines 35—39;
see also id. col. 6, lines 12—21.)
Thus, we sustain the Examiner’s rejection of dependent claims 2
and 16 under 35 U.S.C. § 103(a) as unpatentable over Gault and Tanase
(Rejection I).
Dependent Claims 7 and 21
Claims 7 and 21 each recites a limitation involving “receiving a signal
from a manually operated switch to switch the vehicle to the ETS operation
mode.” (Claims App.) The Examiner finds that such a manually operated
switch is “known art” and cites to a statement in the Specification discussing
how a driver might not be sufficiently motivated to manually switch to an
electric operating mode. (Final Action 5.)
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The Appellant argues that the cited statement is “background
information” and “not necessarily prior art.” (Appeal Br. 12.) We are not
persuaded by this argument because the Appellant does not contend that
manual switches are not conventional mechanisms for vehicle control, or
otherwise persuasively challenge the Examiner’s finding that such manual
switches are known in the art. (See Id.) We note that Gault implicates that it
is known to adjust fuel-emission-related equipment non-automatically (i.e.,
manually) to support air-quality-improvement efforts, via its discussion of
how adjusting “fuel emissions automatically” would “further support” these
efforts. (Gault, col. 1, lines 28—29.)
Thus, we sustain the Examiner’s rejection of dependent claims 7
and 21 under 35 U.S.C. § 103(a) as unpatentable over Gault and Tanase
(Rejection I).
Dependent Claims 9 and 23
Dependent claims 9 and 23 recite that emission credits are “only
awarded” when “the ETS operation mode preempts an otherwise legitimate
ICE operation mode.” (Claims App.) The Examiner finds that Tanase
teaches awarding emission credits to “provide positive incentive to operate
vehicles in [a] cleaner operating mode.” (Final Action 3.)
The Appellant argues that “the Examiner has not specifically
addressed these claim limitations” and they are not “taught or suggested by
the cited prior art.” (Reply Br. 8.) We are not persuaded by this argument
because one of ordinary skill in the art would infer that providing positive
incentive to operate vehicles in electric mode would not be necessary if
legitimate ICE operation was not an option. Moreover, as discussed above,
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rules regarding when (or when not) to award emission credits would depend
upon “cooperation of groups of people.” (Answer 11).
Thus, we sustain the Examiner’s rejection of dependent claims 9
and 23 under 35 U.S.C. § 103(a) as unpatentable over Gault and Tanase
(Rejection I).
Dependent Claims 13 and 30
Dependent claims 13 and 30 recite that emission credits are awarded
only if “the vehicle remains stationary for no more than a predetermined
time interval.” (Claims App.) The Examiner finds that Tanase teaches this
credit-awarding scheme. (See Final Action 6.)
The Appellant argues that Examiner “makes a mere conclusory
statement” and does not sufficiently explain why Tanase discloses the claim
limitation. (Appeal Br. 13.) We are not persuaded by this argument because
the Examiner discusses Tanase’s idling stop detector (see Final Action 5)
and this detector measures “stationary” time intervals, compares them to
predetermined time periods, and transmits idling-related information to an
ecological driving evaluation unit (see Tanase, col. 7, lines 50-62). And
again, as discussed above, rules regarding when (or when not) to award
emission credits would depend upon “cooperation of groups of people”
(Answer 11).
Thus, we sustain the Examiner’s rejection of dependent claims 13
and 30 under 35 U.S.C. § 103(a) as unpatentable over Gault and Tanase
(Rejection I).
Dependent Claims 28 and 32
Dependent claims 28 and 32 recite that emission credits are awarded
“only for particular non-attainment areas,” that different “types” of emission
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credits are awarded for different attainment areas, and that different “types”
of credits are awarded for different ETS uses. (Claims App.) The Examiner
determines that “given the knowledge of emission credits and non­
attainment areas” the recited emission-credit-awarding scenario would have
been obvious. (Answer 17.)
The Appellant argues that the Examiner “has not specifically shown
where these limitations are taught or suggested by the combination of the
prior art references.” (Reply Br. 9.) We are not persuaded by this argument
because Gault teaches that some emission compliance zones are “stricter”
than others (Gault, col. 6, lines 42-45), Fleming teaches that there are
different types of non-attainment areas (Fleming 140), and Tanase teaches
that different operating states (e.g., idling and non-idling) factor into energy­
saving evaluations (Tanase, col. 1, lines 43 46). The Appellant does not
adequately address why one of ordinary skill in the art would not have
recognized that the claimed combination of these familiar concepts could be
employed to formulate rules regarding when, where, and how emission
credits are awarded. Moreover, as discussed above, such rules would
depend upon “cooperation of groups of people.” (Answer 11.)
Thus, we sustain the Examiner’s rejection of dependent claims 28
and 32 under 35 U.S.C. § 103(a) as unpatentable over Gault, Tanase, and
Fleming (Rejection II).
Dependent Claim 29
Dependent claim 29 recites “logic circuitry” that is “configured to
analyze the parametric measurements and the vehicle location data to
determine an actual operating status of the vehicle and its actual location.”
(Claims App.) The Examiner finds that “the presence of said logic circuitry
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is indicated by the teachings of Gault and Tanase, which require knowledge
of a vehicle’s location and operating parameters.” (Final Action 8.)
The Appellant argues that these are “unsupported subjective
statements.” (Appeal Br. 12.) However, Gault teaches that a “current
emission zone” is based on the “vehicle location” (Gault, col. 6, lines 35—36)
and Tanase teaches an energy-saving evaluation should be based on “the
detected operating state of the machine” (Tanase, col. 2, lines 14—15). The
Appellant does not adequately address why one of ordinary skill in the art
would not have recognized that these teachings indicate the presence of
corresponding logic circuitry.
Thus, we sustain the Examiner’s rejection of dependent claim 29
under 35 U.S.C. § 103(a) as unpatentable over Gault and Tanase
(Rejection I).
Dependent Claims 33, 35, 37, and 39
Dependent claims 33, 35, 37, and 39 recite that “during the ETS
operation mode, the movement of the vehicle is solely the result of
generation of the motive force by the ETS, and the ICE is shut off.” (Claims
App.) As discussed above, the Examiner finds that, when Gault’s hybrid
vehicle “switches fuel sources between electricity and gasoline,” this “would
read upon Appellant’s ICE and ETS modes.” (Answer 6.)
The Appellant argues that Gault does not disclose an operation mode
wherein the vehicle is operating “solely under the power” of electric
components and “the ICE is shut off.” (Appeal Br. 14.) We are not
persuaded by this argument because Gault discloses “a fuel selection
parameter that modifies which fuel source” the vehicle is using. (See Gault,
col. 7, lines 20-22.) When gasoline is not the selected fuel source (i.e.,
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electricity is selected), “it follows that the ICE can be not chosen as the
power source” and is “thus shut off.” (Answer 16.)
Thus, we sustain the Examiner’s rejection of dependent claims 33, 35,
37, and 39 under 35 U.S.C. § 103(a) as unpatentable over Gault and Tanase
(Rejection I).
Dependent Claims 34, 36, 38, and 40
Dependent claims 34, 36, 38, and 40 recite that “the electric motor is
coupled to the drive train via a power takeoff port of a transmission in the
drive train.” (Claims App.) The Examiner finds that a power takeoff port
“is merely the output of a transmission in the drive train that imparts motion
downstream” and “any connection by the electric motor to the drive train is
nominally a power takeoff port.” (Answer 16.)
The Appellant argues a power takeoff port is “not equivalent to any
connection of an electric motor to the drive train in a vehicle.” (Reply
Br. 9.) We are persuaded by this argument because the record reflects that a
power takeoff is “a specific type of transfer device” for “accessing a specific
gear within the transmission.” (Id., see also Harris, 9-12.) The Examiner
does not sufficiently show that one of ordinary skill in the art would glean,
from the teachings of Gault and Tanase, that the electric motor of a hybrid
vehicle could be coupled to a drive train via a port associated with this
specific type of transfer device.
Thus, we do not sustain the Examiner’s rejection of dependent
claims 34, 36, 38, and 40 under 35 U.S.C. § 103(a) as unpatentable over
Gault and Tanase (Rejection I).
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DECISION
We AFFIRM the Examiner’s rejections of claims 1—4, 7—9, 13, 15—18,
21—23, and 26-40.
We REVERSE the Examiner’s rejection of claims 34, 36, 38, and 40.
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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