Ex Parte Penrod

Patent Trial and Appeal Board

Mar 26, 2014

12925537 (P.T.A.B. Mar. 26, 2014)

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.
12/925,537 10/25/2010 Fred Franklin Penrod 4829
7590 03/27/2014
Fred Franklin Penrod
25241 Golf Lake Circle
Bonita Springs, FL 34135
EXAMINER
GURARI, EREZ
ART UNIT PAPER NUMBER
3618
MAIL DATE DELIVERY MODE
03/27/2014 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 FRED FRANKLIN PENROD
____________________

Appeal 2013-009805
Application 12/925,537
Technology Center 3600
____________________

Before: JENNIFER D. BAHR, EDWARD A. BROWN, and
ANNETTE R. REIMERS, Administrative Patent Judges.

BAHR, Administrative Patent Judge.

DECISION ON APPEAL

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Application 12/925,537
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STATEMENT OF THE CASE
Fred Franklin Penrod (Appellant) appeals under 35 U.S.C. § 134 from
the Examiner’s decision rejecting claims 1, 5, and 6 under 35 U.S.C.
§ 103(a) as unpatentable over Lambertson (US 7,315,089 B2, iss. Jan. 1,
2008), Grabbe (US 2008/0277174 A1, pub. Nov. 13, 2008), and Cho (US
2004/0237517 A1, pub. Dec. 2, 2004). We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.
The Claimed Subject Matter
Claim 1, reproduced below, is representative of the claimed subject
matter.1
1. A drive system for a non-fossil driven vehicle including a
compressed air engine, said compressed air engine charges a
battery by way of a generator, said compressed air engine is
driven by a compressed air tank, said battery is driving an
electrical engine, said electrical engine driving said vehicle,
wherein said compressed air engine is controlled by a computer,
including additional electricity producing devices, wherein said
additional electricity producing devices are driven by an axle of
said vehicle.

OPINION
Appellant does not present any separate arguments for dependent
claims 5 and 6 apart from claim 1. Thus, we decide this appeal on the basis
of claim 1, with claims 5 and 6 standing or falling with claim 1. 37 C.F.R.
§ 41.37(c)(1)(iv) (2013).
The Examiner found that Lambertson discloses a drive system as
called for in claim 1, except that Lambertson does not explicitly disclose a

1 Amendment filed May 9, 2011.
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Application 12/925,537
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computer which controls the compressed air engine, and does not teach
additional electricity producing devices driven by an axle of the vehicle.
Final Rej. 3.
The Examiner found that Cho teaches a computer which controls the
compressed air engine, and determined it would have been obvious to
modify Lambertson to include a computer as taught by Cho “to better
control when the air engine of the vehicle operates.” Id. The Examiner also
found that Grabbe teaches providing additional electricity producing devices
driven by an axle of the vehicle, and determined it would have been obvious
to provide Lambertson with additional electricity producing devices driven
by the axle, in view of Grabbe’s teachings, “to ensure the electric energy
storage device is adequately charged.” Id.
Appellant takes issue with the Examiner’s position that the control
part in Cho is a “computer.” App. Br. 4. Appellant fails to persuade us of
error in the Examiner’s position. See Ans. 4.
Appellant argues that Cho’s control part is confined to a “tightly
restricted set of duties,” and thus could not be adapted to Lambertson. App.
Br. 4. This argument is not convincing, for the reasons articulated by the
Examiner on page 5 of the Answer. “A person of ordinary skill is also a
person of ordinary creativity, not an automaton.” KSR Int’l Co. v. Teleflex,
Inc., 550 U.S. 398, 421 (2007). We note that claim 1 does not specify which
particular control functions of the compressed air engine must be performed
by the “computer” nor require that the “computer” perform any control
functions not performed by Cho’s control part. Moreover, even assuming
that a more sophisticated control part than that employed in Cho would be
required to effect the necessary control in Lambertson, Appellant does not
persuade us that the provision of such would have been uniquely challenging
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Application 12/925,537
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or beyond the skill in the art at the time of Appellant’s invention. See
Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir.
2007) (citing KSR, 550 U.S. at 416-19) (modification of prior art device to
incorporate a known device held to be obvious where no evidence was
presented that the inclusion of such a device “was uniquely challenging or
difficult for one of ordinary skill in the art” or “represented an unobvious
step over the prior art”); id. (holding that it would have been obvious to
update prior art “using modern electronic components in order to gain the
commonly understood benefits of such adaptation, such as decreased size,
increased reliability, simplified operation, and reduced cost.”).
Appellant points out that Lambertson teaches the use of additional
energy generating devices such as solar devices and air driven devices, but is
silent as to the use of axle driven devices. App. Br. 6; see Lambertson, col.
9, l. 46 – col. 10, l. 8. Thus, Appellant questions why one of ordinary skill
in the art would “add another axle driven electricity producing device.”
Reply Br. 2. As noted above, the Examiner has articulated a reason for such
a modification, namely, “to ensure the electric energy storage device is
adequately charged.” The fact that provision of such axle driven devices is
in addition to other electricity generating devices in no way undermines the
Examiner’s reasoning. Use of axle driven electricity producing devices such
as those taught by Grabbe would take advantage of energy generated by the
drive system that otherwise would be wasted, thereby increasing overall
efficiency of the drive system.
Appellant asserts that “the direct drive axle from each motor to each
wheel cannot accommodate an axle driven electricity generating device. It
is technically an impossibility.” App. Br. 6. As correctly noted by the
Examiner (Ans. 7), Appellant’s assertion amounts to unsupported attorney
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argument, and thus is entitled to little, if any, weight. See In re Geisler, 116
F.3d 1465, 1470 (Fed. Cir. 1997).
Appellant argues that Lambertson discloses four electric drives for
driving four wheels at a time, and thus lacks an electrical engine “driving the
vehicle,” as called for in claim 1. App. Br. 7; Reply Br. 1-2. The Examiner
correctly notes that claim 1 does not exclude additional electrical engines
that drive the vehicle, and finds that “each of the motors of Lambertson can
be fairly characterized as an electric engine.” Ans. 7-8. We agree with the
Examiner. Appellant appears to contend that “an electrical engine” should
be construed to mean “a single electrical engine.” However, the articles “a”
or “an” mean “one or more,” absent clear evidence to the contrary. See KCJ
Corp. v. Kinetic Concepts, Inc., 223 F.3d 1351, 1356 (Fed. Cir. 2000)
(“Unless the claim is specific as to the number of elements, the article ‘a’
receives a singular interpretation only in rare circumstances when the
patentee evinces a clear intent to so limit the article”). Here, Appellant has
not shown a clear intent to limit “an electrical engine” to only one electrical
engine. Moreover, we additionally note that Lambertson explicitly discloses
that “the plurality of drive motors 224 may be replaced with another
configuration of power transmission apparatus, such as one with a
centralized motor or motors and power transfer means for transferring power
to one or more wheels of the vehicle.” Lambertson, col. 9, ll. 4-8 (italics
added). This disclosure directly belies Appellant’s assertion that Lambert’s
driving system “cannot be reduced to any less than four as is suggested by
the Examiner.” See Reply Br. 4. In light of the above, Appellant’s
argument that Lambertson fails to disclose an electrical engine driving the
vehicle, as called for in claim 1, lacks merit.
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Appellant additionally argues that “[t]here is no axle in Lambertson.”
App. Br. 9. This argument is not well founded, for the reasons articulated by
the Examiner. Ans. 8. Appellant also contends that the driving motors 224
of Lambertson “are not mounted on an axle” and “cannot be used as
generators to produce electricity as an alternative.” App. Br. 10. This
argument is not convincing, as it is not directed to the modification of
Lambertson proposed by the Examiner. As noted above, the Examiner
determined it would have been obvious to modify Lambertson to provide
additional energy producing devices, such as those taught by Grabbe (para.
[0009]) for capturing energy from the axle rotation. Final Rej. 3.

DECISION
The Examiner’s decision rejecting claims 1, 5, and 6 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED

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