Ex Parte Holz et al

Patent Trial and Appeal Board

Mar 27, 2013

11916951 (P.T.A.B. Mar. 27, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/916,951 01/07/2008 Matthias Holz 11150/130 1744
26646 7590 03/28/2013
KENYON & KENYON LLP
ONE BROADWAY
NEW YORK, NY 10004
EXAMINER
NGHIEM, MICHAEL P
ART UNIT PAPER NUMBER
2857
MAIL DATE DELIVERY MODE
03/28/2013 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 MATTHIAS HOLZ, MICHAEL ZILLMER, EKKEHARD POTT,
and DAVID PROCHAZKA
____________________

Appeal 2010-010114
Application 11/916,951
Technology Center 2800
____________________

Before MAHSHID D. SAADAT, HUNG H. BUI, and LYNNE E.
PETTIGREW, Administrative Patent Judges.

BUI, Administrative Patent Judge

DECISION ON APPEAL
Appellants1 seek our review under 35 U.S.C. § 134(a) of the
Examiner’s final rejections of claims 17-34.2 We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.3

1 Real Party in Interest is VOLKSWAGEN AG.
2 Claims 1-16 have been cancelled and are not on appeal.
Appeal 2010-010114
Application 11/916,951

2

STATEMENT OF THE CASE
Appellants’ Invention
Appellants’ invention relates to a method and device for determining
a charge/aging state of an energy store in a simple and reliable manner,
without the need to carry out a multitude of unnecessary measurements. See
Appellants’ Spec. 5:17-20.
Claims on Appeal
Claims 17 and 24 are the only independent claims on appeal. Claim
17 is representative of the invention, and is reproduced below with disputed
limitations emphasized:

17. A method for determining a charge/aging state of
an energy store based on a measurement of an open terminal
voltage of the energy store in a load-free state, comprising:

measuring a first open terminal voltage at a first instant;

defining a future instant for at least one further
measurement of the open terminal voltage based on the
measured first open terminal voltage and in accordance with a
prediction model;

measuring at least one additional open terminal voltage
at the future instant; and

determining the charge/aging state of the energy store
based on the at least one additional open terminal voltage.

3 Our decision refers to Appellants’ Appeal Brief filed January 19, 2010
(“App. Br.”); Reply Brief filed June 14, 2010 (“Reply Br.”); Examiner’s
Answer mailed April 13, 2010 (“Ans.”); and Substitute Specification filed
December 7, 2007 (“Spec.”).
Appeal 2010-010114
Application 11/916,951

3

Evidence Considered
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Martin US 4,390,841 Jun. 28, 1983
Aylor US 5,808,445 Sep. 15, 1998

Examiner’s Rejections
(1) Claims 17-20, 22-26, and 29-34 stand rejected under 35 U.S.C.
§102(b) as being anticipated by Aylor. Ans. 3-6.
(2) Claims 21, 27, and 28 stand rejected under 35 U.S.C. §103(a)
as being unpatentable over Aylor and Martin. Ans. 7-8.

ISSUE
Based on Appellants’ arguments, the dispositive issue on appeal is
whether the Examiner erred in rejecting claims 17-20, 22-26, and 29-34
under 35 U.S.C. §102(b) as being anticipated by Aylor. The issue turns on
whether Aylor discloses the features “defining a future instant for at least
one further measurement of the open terminal voltage based on the measured
first open terminal voltage and in accordance with a prediction model,” then
“measuring at least one additional open terminal voltage at the future
instant” and “determining the charge/aging state of the energy store based on
the at least one additional open terminal voltage,” as recited in claim 17, and
similarly recited in claim 24. App. Br. 3-5.
Appeal 2010-010114
Application 11/916,951

4

ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments that the Examiner has erred. Only those arguments actually made
by Appellants in the Appeal Brief have been considered. See 37 C.F.R.
§ 41.37(c)(1)(vii).
We disagree with Appellants’ conclusions as to all rejections. We
adopt as our own (1) the findings and reasons set forth by the Examiner in
the action from which this appeal is taken and (2) the reasons set forth by the
Examiner in the Examiner’s Answer in response to Appellants’ Appeal
Brief. We also concur with the conclusions reached by the Examiner and
further highlight and address specific findings and arguments for emphasis
as follows.
With respect to independent claim 17, Appellants contend that Aylor
does not disclose the features “defining a future instant for at least one
further measurement of the open terminal voltage based on the measured
first open terminal voltage and in accordance with a prediction model,” then
“measuring at least one additional open terminal voltage at the future
instant” and “determining the charge/aging state of the energy store based on
the at least one additional open terminal voltage.” App. Br. 3-6; Reply Br.
1-4. In particular, Appellants argue that:
(1) Aylor et al. merely states that “[d]uring the recovery process from
a discharging cycle, the open circuit voltage is monitored for about the
first seven minutes.” (col. 5, lines 58 to 60; and col. 7, lines 63 to 67).
Further, Aylor et al. specifically states that OCV readings are taken at
1 minute and 6.6 minutes of rest time (col. 9, lines 28 to 33). Thus, the
time points at which the method of Aylor et al. measures open circuit
Appeal 2010-010114
Application 11/916,951

5

voltage are predetermined and fixed, i.e., at 1 minute and at 6.6
minutes ....

(App. Br. 4)(first emphasis added) (second emphases in the original);

(2) the equation included in Figure 1 of Aylor et al…. is merely a
predictive calculation of voltage based on the measured values of V6.6
and V1. Accordingly, Aylor et al. merely describes calculating a
predictive voltage Vrec, but Aylor et al. does not disclose defining a
future instant at which to take a voltage measurement...

(App. Br. 4-5) (emphasis in the original); and

(3) Figure 1 merely shows a typical OCV recovery curve and OCV
monitoring method on a logarithmic time scale. (col. 3, lines 1 to 2).
Thus, Figure 1 of Aylor et al. merely shows a prediction method based
on measured voltages at V6.6 and V1. (col. 7, lines 12 to 23). Nowhere
does Figure 1 disclose a future instant for at least one further
measurement based on the first open terminal voltage. The
Examiner's assertion that such a future instant is defined at about 100
minutes is pure speculation and conjecture, since Aylor et al. does not
refer to any such future instant in its disclosure. Further, Figure 2 of
Aylor et al. merely illustrates this prediction method against actual
recovery rate. (col. 3, lines 3 to 4). That is, Figure 2 is provided
merely to demonstrate the "accuracy of this OCV prediction technique
[against] voltage recovery data [] plotted next to the predicted
equilibrium voltage." (col. 7, lines 39 to 42). However, nowhere does
Aylor et al. disclose defining a future instant for at least one further
measurement based on the first open terminal voltage, in the context
of a method for determining a charge/aging state of an energy store.

(Reply Br. 3) (emphases and alteration in the original).

However, we do not find Appellants’ arguments persuasive to
demonstrate reversible error in the Examiner’s findings that Figs. 1 and 2 of
Aylor show a “future instant” as an instant when an open circuit voltage
(OCV) recovery curve meets/intersects an equilibrium OCV (Vrec) level
Appeal 2010-010114
Application 11/916,951

6

based on the first open terminal voltage (V1) and in accordance with a
prediction model (equation Vrec = 2V6.6 – V1, Fig. 1; prediction method, col.
7, ll. 17-23). Ans. 8-9. See In re Jung, 637 F.3d 1356, 1365 (Fed. Cir.
2011). At the outset, we note that claims are given their broadest
reasonable construction consistent with the specification. In re Am. Acad. of
Sci. Tech Ctr., 367 F.3d 1359, 1369, (Fed. Cir. 2004).
In the context of Appellants’ Specification, we note that Appellants
describe that:
The prediction model may include mathematically evaluable
equations and/or reference tables, which are stored in a memory
25. The prediction model is able to be arranged in software or
in hardware as well.... At the future instant, ascertained with the
aid of the prediction model, voltage-measurement sensor 22
determines at least one additional open terminal voltage at the
request of control unit 23. It is used to determine the charge
state of battery 12 with the aid of a previously known relation,
which is stored, for example, in memory 25 in the form of
tables, or which is able to be calculated with the aid of a
mathematical equation. The prediction model specifies the
future instant such that battery 12 is expected to be in a state of
rest [in its quiescent state], so that the open terminal voltage
measured at the future instant allows a precise determination of
the charge and aging state....

In Fig. 3, the relationship between the deviation of the open
terminal voltage and the open-circuit voltage and the charge
state, determined accordingly, has been plotted graphically
against time. At instant T1, the open terminal voltage is
measured. The prediction model predicts that an approximate
quiescent state of the energy store is reached at instant T2.
Using the open terminal voltage measured at instant T2, the
charge state (SOC) will be determined....

Spec. 12:33 – 14:5 (emphases added).
Appeal 2010-010114
Application 11/916,951

7

Appellants’ Fig. 3 is reproduced below:

Appellants’ Fig. 3 shows a first instant (T1) where an open terminal
voltage is measured and a future instant (T2) where the open terminal
voltage reaches its approximate quiescent state.

In view of Appellants’ Specification, we conclude that the claimed
“future instant” may be broadly, but reasonably, construed to encompass
Aylor’s instant where an open circuit voltage (OCV) recovery curve
meets/intersects an equilibrium OCV (Vrec) level, at for example, Time (100
minutes), shown in Fig. 1. Likewise, we also conclude that the claimed
“prediction model” may be broadly, but reasonably, construed to encompass
Aylor’s equation Vrec = 2V6.6 – V1, shown in Fig. 1; prediction method,
described on col. 7, ll. 17-23 of Aylor (Ans. 9), or alternatively, Aylor’s
equation 3.6 (OCVequilibrium = 2OCV6.6min – OCV1min), described on col. 9, ll.
27-35 of Aylor.

Appeal 2010-010114
Application 11/916,951

8

Similarly, Aylor’s Fig. 1 is reproduced below (with a red line added to
show Aylor’s instant where an open circuit voltage (OCV) recovery curve
meets/intersects an equilibrium OCV (Vrec) level, at for example, Time (100
minutes):

As shown in Fig. 1 of Aylor, a combination of open circuit voltage
(OCV) measurements is taken in order to produce an accurate state of
charge. For example, Aylor describes OCV is monitored, especially for
about the first 6.6 minutes, with consecutive OCV readings taken and
averaged. See Aylor, col. 7, ll. 63-67; col. 9, ll. 27-40. However, Aylor is
not limited to monitoring the OCV between 1 - 6.6 or 7 minutes. As such,
we agree with the Examiner that Fig. 1 of Aylor shows that the monitoring
of OCV (represented by the OCV curve) proceeds beyond 6.6 minutes and
extends up to a future instant at the equilibrium OCV. Ans. 10.
Appellants argue that Aylor does not refer to any such future instant in
its disclosure and that the Examiner’s assertion that such a future instant is
defined at about 100 minutes is pure speculation and conjecture. Reply Br.
3. However, “it is proper to take into account not only specific teachings of
Appeal 2010-010114
Application 11/916,951

9

the references but also the inferences which one skilled in the art would
reasonably be expected to draw therefrom.” In re Preda, 401 F.2d 825, 826
(CCPA 1968). One of ordinary skill in the art looking at Fig. 1 of Aylor
would draw the inference that the OCV is measured at a future instant at the
equilibrium OCV, as the Examiner found. Ans. 8-9.
In view of such claim construction, and similar OVC measurements at
different times in Appellants’ Fig. 3 and Aylor’s Fig. 1, contrary to
Appellants’ arguments presented, we agree with the Examiner’s findings
that Aylor discloses:
the features of defining a future instant (the instant when the
OCV curve meets/intersects the equilibrium OCV (Vrec) level,
Figs. 1, 2) for at least one further measurement of the open
terminal voltage (OCV measurement at Vrec, Figs. 1, 2) based
on the first open terminal voltage (OCV = V1) and in
accordance with a prediction model (Vrec equation, Fig. 1;
column 7, lines 14-23) measuring at least one additional open
terminal voltage at the future instant (measuring OCV's at the
instant of Vrec, Figs. 1, 2), and determining the charge/aging
state of the energy store based on the at least one additional
open terminal voltage (column 7, lines 19-23),

as recited in claim 17 and similarly recited in claim 24. Ans. 13.
For all the reasons set forth above, we do not find error in the
Examiner’s findings and conclusions, and, therefore, sustain the Examiner’s
anticipation rejection of claims 17-20, 22-26, and 29-34.
With respect to claims 21, 27 and 28, Appellants present no separate
arguments for patentability of these claims and rely on the reasons argued
for claim 17. App. Br. 6; Reply Br. 5-6. As such, claims 21, 27, and 28 fall
with independent claims 17 and 24. See 37 C.F.R. § 41.37 (c)(1)(vii).
Appeal 2010-010114
Application 11/916,951

10

CONCLUSION
On the record before us, we conclude that the Examiner has not erred
in rejecting: (1) claims 17-20, 22-26, and 29-34 under 35 U.S.C. §102(b) as
being anticipated by Aylor; and (2) claims 21, 27, and 28 under 35 U.S.C.
§103(a) as being unpatentable over Aylor and Martin.

DECISION
As such, we affirm the Examiner’s final rejections of claims 17-34.
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) (2011).

AFFIRMED

tj