Ex Parte Seel et al

Patent Trial and Appeal Board

Apr 28, 2017

12086411 (P.T.A.B. Apr. 28, 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.
12/086,411 03/06/2009 Andreas Seel BOSC.P5550US/11602888 7901
24972 7590 05/02/2017
NORTON ROSE FULBRIGHT US LLP
1301 Avenue of the Americas
NEW YORK, NY 10019-6022
EXAMINER
DOLAK, JAMES M
ART UNIT PAPER NUMBER
3618
NOTIFICATION DATE DELIVERY MODE
05/02/2017 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):
nyipdocket@nortonrosefulbright.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANDREAS SEEL, HOLGER NIEMANN,
OLIVER KAEFER, and PER HAGMAN
Appeal 2015-003561
Application 12/086,411
Technology Center 3600
Before JAMES P. CALVE, BRANDON J. WARNER, and
FREDERICK C. LANEY, Administrative Patent Judges.
WARNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Andreas Seel et al. (“Appellants”)1 appeal under 35 U.S.C. § 134(a)
from the Examiner’s decision rejecting claims 12, 13, and 15—20, which are
all the pending claims. Appeal Br. 1. We have jurisdiction over the appeal
under 35 U.S.C. § 6(b).
We REVERSE.
1 According to Appellants, the real party in interest is Robert Bosch
GmbH. Appeal Br. 2.
Appeal 2015-003561
Application 12/086,411
CLAIMED SUBJECT MATTER
Appellants’ disclosed invention relates to “a method and a device for
monitoring torque output of a drive unit.” Spec., p. 1,11. 3^4.2 Claim 12,
reproduced below with emphasis added, is the sole independent claim
appealed and is representative of the subject matter on appeal.
12. A method for torque monitoring of a vehicle drive unit
having at least a first drive and a second drive, comprising:
ascertaining respective maximum permissible torques for
each of the first and second drives in a calculation stage of a
control unit;
performing a continuous torque comparison in a
comparison stage of the control unit (i) between a setpoint
torque for the first drive and the ascertained maximum
permissible torque for the first drive, and (ii) between a setpoint
torque for the second drive and the ascertained maximum
permissible torque for the second drive.
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Phillips US 6,907,337 B2 June 14, 2005
2 We note that references herein to Appellants’ Specification refer to
the Substitute Specification filed June 11, 2008.
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Appeal 2015-003561
Application 12/086,411
REJECTION
The following rejection is before us for review: Claims 12, 13, and
15—20 stand rejected under 35 U.S.C. § 102(e) as anticipated by Phillips.3
Non-Final Act. 4—7.
ANALYSIS
Independent claim 12 recites, in relevant part, a method for torque
monitoring of a vehicle drive unit that includes at least first and second
drives, including “ascertaining respective maximum permissible torques for
each of the first and second drives in a calculation stage of a control unit”
and then “performing a continuous torque comparison in a comparison stage
of the control unit” between setpoint torques and the ascertained maximum
permissible torques for each of the first and second drives. See Appeal Br.,
Claims App. (emphasis added). Appellants argue that Phillips, as relied on
in the rejection, does not disclose ascertaining any maximum permissible
torque, or any comparison thereagainst. See Appeal Br. 3—5; Reply Br. 2—3.
We agree.
In rejecting the claims, the Examiner relies on signals 108 and 110 in
Phillips, which indicate the maximum available torques from respective
drive controllers 76 and 78, as meeting the recited maximum permissible
torques that are ascertained in the claimed method. Non-Final Act. 4—5
(citing Phillips, Figs. 3a, 3b); see Phillips, col. 7,11. 25—29. The Examiner
3 We note that a rejection of claims 12, 13, and 15—20 under 35 U.S.C.
§112, second paragraph, as being indefinite as incomplete for omitting
essential elements and/or steps, has been withdrawn by the Examiner and
thus is not before us for review as part of the instant appeal. Ans. 6.
3
Appeal 2015-003561
Application 12/086,411
acknowledges that Phillips “does not use the term ‘permissible’ for these
torque determinations,” but takes the position that signals 108 and 110
“would have been understood by a person of ordinary skill in the art as
providing the equivalent and analogous information to the vehicle control
unit.” Ans. 7 (emphasis added). However, Appellants persuasively argue
that the Examiner has not adequately explained a reasoned basis to equate a
maximum available torque (indicative of the torque capability of the drive)
and a maximum permissible torque (indicative of some limit imposed on the
available torque, such as for safety considerations), which we agree
represent different—albeit perhaps related—torques. See Reply Br. 2—3.
Further, although we appreciate the Examiner’s observation that
Phillips discloses that “the available torque from motor 442 can be limited
by several factors including motor temperature, battery state of charge,
motor speed, and the like,” these limiting factors all relate to capability of
the motor (maximum available torque) rather than to any acceptable or
allowable limit that may be placed on such available torque (maximum
permissible torque). Ans. 7 (quoting Phillips, col. 15,11. 35—38); see Reply
Br. 2—3. Appellants’ Specification, in light of which the claim terms must
be interpreted, indicates that the ascertained maximum permissible torque is
a safety limit that is imposed on the available torque—logically, distinct
from and lower than the maximum available torque. See, e.g., Spec., p. 7,
11. 19-27 (describing that an error response is initiated when the actual
torque, which naturally would be limited by the maximum available torque,
exceeds the maximum permissible torque); see also id. at p. 2,11. 4—12; p. 3,
11. 17—29 (describing the same condition of the actual torque exceeding the
maximum permissible torque).
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Appeal 2015-003561
Application 12/086,411
The Examiner does not identify—nor do we discern—any disclosure
in Phillips to support the conclusion that its maximum available torque
“would be understood” to provide a maximum safe value, such that this
disclosed available torque “would be equivalent” to the maximum
permissible torque ascertained in the claimed method. Ans. 7—8. In short,
we agree with Appellants that the Examiner has not established by a
preponderance of the evidence that the “maximum available torque” of
Phillips, as relied on in the rejection, would necessarily equate to the
“maximum permissible torque” of the claimed method. See Appeal Br. 3—5;
Reply Br. 2—3.
Accordingly, based on the record before us—because an anticipation
rejection requires a finding in a single reference of each and every limitation
as set forth in the claims—we do not sustain the rejection of claims 12, 13,
and 15—20 under 35 U.S.C. § 102(e) as anticipated by Phillips.
DECISION
We REVERSE the Examiner’s decision rejecting claims 12, 13, and
15—20 under 35 U.S.C. § 102(e) as anticipated by Phillips.
REVERSED
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