General Electric Company

Patent Trials and Appeals Board

Aug 30, 2021

2021001424 (P.T.A.B. Aug. 30, 2021)

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.
14/860,782 09/22/2015 Aaron Craig Mellinger WABP11304USTL2
552-278US
2030
91959 7590 08/30/2021
The Small Patent Law Group, LLC
1423 Strassner Dr.
Suite 100
Brentwood, MO 63144
EXAMINER
WHALEN, MICHAEL F
ART UNIT PAPER NUMBER
3665
NOTIFICATION DATE DELIVERY MODE
08/30/2021 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):
Docket@splglaw.com
GBL_IP_Patent_Comm@wabtec.com
john.kramer@wabtec.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte AARON CRAIG MELLINGER,
HENRY TODD YOUNG, JASON DANIEL KUTTENKULER,
JEFFREY JOHN WOLFF, and LINDSAY SHORT

Appeal 2021-001424
Application 14/860,782
Technology Center 3600
____________

Before MICHAEL C. ASTORINO, NINA L. MEDLOCK, and
KENNETH G. SCHOPFER, Administrative Patent Judges.

SCHOPFER, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 3–10, 23, 24, 26, 27, and 32–38.
Claims 11 and 39–46 remain pending in this application but are withdrawn

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as
Transportation IP Holdings LLC, which “is a subsidiary of Westinghouse
Air Brake Technologies Corporation, dba Wabtec Corporation.” Appeal
Br. 4.
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from consideration under 37 C.F.R. § 1.142(b) as directed to a non-elected
invention. Claims 1, 2, 12–22, 25, and 28–31 have been cancelled. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
BACKGROUND
The Specification provides embodiments of systems and methods for
monitoring a vehicle’s fuel consumption or route conditions. See
Spec. ¶¶ 8–11
CLAIMS
Claims 32 and 34 are the independent claims on appeal and recite:
32. A control system, configured to:
compare a measured energy consumption amount of a
vehicle for travel from a first location to a second location along
a route segment to a predetermined energy consumption amount
associated with the route segment,
monitor input from an operator of the vehicle for one or
more operating parameters selected from a throttle setting, a
vehicle speed, and an engine power output, and
prevent the operator from changing a setting of the one or
more operating parameters at a rate that exceeds a threshold limit
rate that is based at least in part on the predetermined energy
consumption amount.
34. A method, comprising:
determining a consumption metric value that is
representative of (i) one or both of an amount of fuel consumed
and an amount of energy consumed by a vehicle during travel
over a route segment and (ii) a predetermined consumption level
of fuel or energy associated with the route segment, wherein the
consumption metric value is representative of how efficiently an
operator controls the vehicle and is based at least in part on:
a historic average of previous trips,
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a calculated value that includes cargo weight and
traversed elevation of the route segment, and
route segment conditions; and
communicating the consumption metric value to the
operator or to an off-vehicle system.
Appeal Br. 22–23.
REJECTIONS
1. The Examiner rejects claims 3–5, 7–9, 23, 24, 27, 32–34, and 36–38
under 35 U.S.C. § 103 as unpatentable over Hunt2 in view of Miller3 and
Yoshikawa.4
2. The Examiner rejects claims 6 and 26 under 35 U.S.C. § 103 as
unpatentable over Hunt in view of Miller, Yoshikawa, and Ogura.5
3. The Examiner rejects claims 10 and 35 under 35 U.S.C. § 103 as
unpatentable over Hunt in view of Miller, Yoshikawa, and Medwin.6
DISCUSSION
Rejection of Claim 32
We are persuaded of error in the rejection of claim 32 because we
agree with Appellant that the Examiner has not established that the art of
record teaches or renders obvious the limitation: “prevent the operator from
changing a setting of the one or more operating parameters at a rate that
exceeds a threshold limit rate that is based at least in part on the
predetermined energy consumption amount.”

2 Hunt et al., US 2013/0164714 A1, pub. June 27, 2013.
3 Miller et al., US 2011/0032093 A1, pub. Feb. 10, 2011.
4 Yoshikawa et al., US 2015/0329102 A1, pub. Nov. 19, 2015.
5 Ogura et al., US 2017/0177002 A1, pub. June 22, 2017.
6 Medwin et al., US 2009/0265059 A1, pub. Oct. 22, 2009.
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In the rejection of claim 32, the Examiner appears to rely solely on
Miller with respect to the limitation at issue. The Examiner finds that Hunt
does not teach a system that prevents the operator from changing a setting as
claimed and finds:
However Miller teaches:
i. prevent the operator from changing a setting of the one or
more operating parameters at a rate that exceeds a threshold limit
rate that is based at least in part on the predetermined energy
consumption amount (see at least Fig 2-4; #38, #39, and #122;
and ¶0033 and ¶0051; Discussing automatically controlling the
speed if the speed is above a threshold value.).
Final Act. 13.
To the extent the Examiner relies only on Miller, we agree with
Appellant that the Examiner has not identified any portion of Miller that
teaches preventing an operator from changing a setting of an operating
parameter “at a rate that exceeds a threshold limit rate that is based at least in
part on the predetermined energy consumption amount.” Appeal Br. 11.
Specifically, we agree that the cited portions of Miller do not teach limiting
operation of a vehicle based on a threshold that is related to energy
consumption. Id. Miller teaches a system that may limit the speed of a
vehicle based on speed limit information. See Miller ¶¶ 33, 51. Miller is
silent regarding any relationship between the speed limit and energy
consumption.
The Examiner contends that “the speed of the vehicle affects the
amount of energy consumed and after a certain speed as vehicles accelerate
their efficiency goes down.” Final Act. 2–3. Thus, the Examiner indicates
that the “speed limit is a limit rate that is based at least in part on a
predetermined energy consumption amount.” Id. at 3 (emphasis omitted).
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We disagree. The fact that speed affects fuel efficiency does not necessarily
mean that the speed limit “is based at least in part on [any] predetermined
energy consumption amount.” Although it is possible that a speed limit may
be set based on an energy consumption amount, the Examiner fails to
establish that this is the case in Miller or that it otherwise would have been
obvious to do so based on the art of record.7
The Examiner also indicates that the limitation at issue may be taught
by the combination of Hunt and Miller. The Examiner finds:
Hunt teaches “minimizing fuel efficiency robbing
behavior, including sudden braking, rapid acceleration and
downshifting too early”, but teaches warning if these conditions
are met. Since Miller teaches automatically controlling a vehicle
to prevent certain conditions in ¶0033 it would have been
obvious to one of ordinary skill in the art at the time the invention
was filed to modify the teachings of Hunt by automatically
controlling the vehicle as taught in Miller, to prevent the vehicle
from being used in manner not intended by the owner. Thus
when looking at the combined teachings of Hunt and Miller it
would have been obvious to one of ordinary skill in the art at the
time the invention was filled [sic] to control the behaviors
monitored by Hunt (i.e.[,] acceleration).
Final Act. 3–4. This characterization of the rejection appears to be premised
on a finding that Hunt teaches providing a warning when the vehicle
operator changes “a setting of the one or more parameters at a rate that
exceeds a threshold limit rate that is based at least in part on the
predetermined energy consumption amount.” Yet, the Examiner does not

7 We note that the Examiner also references Yoshikawa as teaching “the use
of a more specific energy consumption amount in [¶]¶0062-63 and ¶0083.”
Final Act. 3. Yet, the Examiner does not explain how this relates to the
issue at hand, and it is not clear how the cited paragraphs are being relied
upon by the Examiner.
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adequately establish that this is the case. Hunt does teach “[i]n at least one
embodiment, the performance metric is based at least in part on minimizing
fuel efficiency robbing behavior, including sudden braking, rapid
acceleration and downshifting too early.” Hunt ¶ 14. Hunt also discloses
that “drivers with relatively poor numerical ranking scores can receive
counseling or warnings.” Hunt ¶ 19. However, without further citation to
evidence or explanation from the Examiner, we fail to see how Hunt teaches
providing such warnings when an operator is operating a vehicle such that “a
setting of the one or more parameters [is changed] at a rate that exceeds a
threshold limit rate that is based at least in part on the predetermined energy
consumption amount.”
Finally, the Examiner finds:
Furthermore Miller prevents vehicles from accelerating
(thus preventing the changing an operating parameter rate) when
the vehicle is above a certain speed in figures 2-4. Therefore if
the speed is above a threshold Miller would set the threshold
acceleration value at 0 thus preventing the vehicle from
accelerating but allowing the vehicle to decelerate (i.e.[,] have a
negative acceleration). Additionally because [the] independent
claims do not specify what the operating parameters8 or the
threshold [is,] the velocity could read on [the] rate of change of
an operating parameter (i.e.[,] position). Thus limiting the
velocity would limit how fast the vehicle can change its position.
Final Act. 4. The Examiner does not explain adequately how this shows that
Miller alone, or in combination with Hunt, teaches the limitation at issue.

8 We note that the Examiner raises the issue in multiple instances that the
claim language does not set forth what the “one or more operating
parameters” are. See Final Act. 3, 4; Ans. 4–5. Yet, the claim specifically
recites “one or more operating parameters selected from a throttle setting, a
vehicle speed, and an engine power output.”
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The issue is not that Miller does not disclose preventing certain vehicle
operating conditions, but rather, whether the art teaches preventing an
operator from changing a setting of an operating parameter that exceeds a
threshold based on a predetermined energy consumption amount. To the
extent Miller teaches limiting acceleration, it is based on the speed limit,
which, as discussed above, is not related to fuel consumption in Miller.
Based on the foregoing, we are persuaded of error in the rejection of
claim 32. Accordingly, we do not sustain the rejection of claim 32.
Regarding the rejections of claims 3–10 and 33, the Examiner does not set
forth any additional evidence or explanation that would cure the deficiency
in the rejection of claim 32, from which these claims depend. Accordingly,
we also do not sustain the rejections of claims 3–10 and 33.
Rejection of claim 34
With respect to claim 34, the Examiner finds, in relevant part, that
Hunt teaches determining a consumption metric value based at least in part
on “a calculated value that includes cargo weight and traversed elevation of
the route segment.” Final Act. 12 (citing Hunt Figs. 8–10; ¶¶ 16, 17, 93).
The Examiner also finds that Yoshikawa teaches determining a consumption
metric value based at least in part on “a historic average of previous trips”
and “route segment conditions.” Id. at 14–15 (citing Yoshikawa Figs. 1, 3,
4; ¶¶ 37–39, 62, 63). The Examiner then determines:
Therefore it would have been obvious to one of ordinary
skill in the art at the time the invention was filed to modify the
teachings of Hunt and Miller by comparing a measured energy
consumption amount of a vehicle for travel from a first location
to a second location along a route segment to a predetermined
energy consumption amount associated with the route segment
and wherein the consumption metric value is representative of
how efficiently an operator controls the vehicle and is based at
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least in part on: a historic average of previous trips and route
segment conditions as taught by Yoshikawa because doing so
would allow the system to adapt to unexpected energy usage.
This allowing the system to be more energy efficient.
Id. at 15.
As discussed below, we determine that Appellant has not identified
any error in the Examiner’s findings or determinations with respect to
claim 34.
Appellant first argues that Hunt only discusses vehicle weight and not
cargo weight. Appeal Br. 14. Thus, Appellant seems to indicate that Hunt
does not disclose a consumption metric value that is based on cargo weight.
We disagree. Hunt discloses determining a “performance metric [that] is
based on the amount of vehicle work performed.” Hunt ¶ 17. Hunt
discloses that “such a metric includes using vehicle position derived slope
data to determine a vehicle’s mass at a plurality of different times during
operation of a vehicle, and then using the mass to calculate work.” Id.
Although Hunt discloses only determining the “vehicle’s mass,” one would
understand that the calculation would include the combined mass of the
vehicle and any cargo it is carrying. Thus, the performance metric would
necessarily be based at least in part on the vehicle’s cargo weight.
Appellant also argues that the art does not teach determining a
consumption metric value that is based at least in part on all three parameters
in the claim, i.e., based in part on “historic average of previous trips,” “a
calculated value that includes cargo weight and traversed elevation of the
route segment,” and “route segment conditions.” Appeal Br. 14. However,
Appellant only argues that no reference individually teaches the use of all
three parameters in determining a consumption metric value, but the
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Examiner relies on the combination of Hunt and Yoshikawa to teach such a
determination. Appellant has not identified any error in the Examiner’s
reliance on this combination of art in rejecting the claim.
Based on the foregoing, Appellant does not persuade us of any error
in the rejection of independent claim 34. Appellant does not provide
separate arguments regarding the rejection of claims 23, 24, 27, and 36–38,
which depend from claim 34. Thus, we are not persuaded of error in the
rejection of these claims as well. Accordingly, we sustain the rejection of
claims 23, 24, 27, 34, and 36–38.
Rejection of Claim 26
Claim 26 depends from claim 34 and further requires “wherein one or
more of the amount of fuel consumed or the amount of energy consumed by
the vehicle is calculated based on one or more efficiency estimates of the
vehicle and power generated by a powertrain of the vehicle.” Appeal Br. 21.
The Examiner relies on Ogura as teaching a control system that is
configured to calculate fuel or energy consumed based on power generated
by a powertrain of the vehicle and one or more efficiency estimates of the
vehicle. Final Act. 17 (citing Ogura Fig. 1; ¶ 122). More specifically, the
Examiner finds that Ogura discloses determining fuel consumption based on
operating time and engine rpm, which the Examiner finds correspond to the
claimed “one or more efficiency estimates of the vehicle” and “power
generated by a powertrain,” respectively. See Ans. 8–9.
Appellant argues that Ogura does not teach determining fuel
consumed based on both “one or more efficiency estimates” and “power
generated by a powertrain.” Appeal Br. 17–18; see also Reply Br. 5–6. We
are not persuaded of error by this argument. The cited portion of Ogura
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discloses, in relevant part, that “the amount of consumed fuel may be
calculated through integration of the engine rpm, the load, the operating time
or the like, to execute control to stop the operation when the integrated value
exceeds a predetermined level.” Ogura ¶ 122. By disclosing that fuel
consumption is calculated “through integration” of the parameters listed, we
find that Ogura at least suggests that fuel consumption may be based on one
or more of the parameters listed together. Further, Appellant does not raise
any issues with the Examiner’s explanation regarding how Ogura teaches
using efficiency estimates, i.e. operating time, and generated power, i.e.
engine rpm, to determine fuel consumption. Thus, Appellant does not
persuaded us of error in the Examiner’s finding that Ogura teaches the use of
the factors claimed in determining fuel consumption.
Based on the foregoing, we are not persuaded of error in the rejection
of claim 26. Accordingly, we sustain the rejection of this claim.
Claim 35
Claim 35 depends from independent claim 34. With respect to
rejection of this claim, Appellant relies only on the arguments addressed
above with respect to claim 34. Appeal Br. 18. We are not persuaded by
those arguments for the reasons discussed above, and thus, we also sustain
the rejection of claim 35.
CONCLUSION
We AFFIRM the rejections of claims 23, 24, 26, 27, and 34–38. We
REVERSE the rejections of claims 3–10, 32, and 33.
In summary:
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Claims
Rejected
35 U.S.C. § Basis Affirmed Reversed
3–5, 7–9, 23,
24, 27, 32–
34, 36–38
103 Hunt, Miller,
Yoshikawa
23, 24, 27,
34, 36–38
3–5, 7–9,
32, 33
6, 26 103 Hunt, Miller,
Yoshikawa,
Ogura
26 6
10, 35 103 Hunt, Miller,
Yoshikawa,
Medwin
35 10
Overall
Outcome
23, 24, 26,
27, 34–38
3–10, 32,
33

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-IN-PART