Joseph D. Rocci et al.

Patent Trials and Appeals Board

Jul 22, 2021

2018000560 (P.T.A.B. Jul. 22, 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.
12/888,181 09/22/2010 Joseph D. Rocci 1002-0002 3919
171273 7590 07/22/2021
Steven J Rocci P.C. (Murgitroyd)
201 Bloomingdale Ave
Wayne, PA 19087
EXAMINER
TORRES RUIZ, JOHALI ALEJANDRA
ART UNIT PAPER NUMBER
2859
NOTIFICATION DATE DELIVERY MODE
07/22/2021 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):
celia.mena@murgitroydip.com
srocci@sroccilaw.com
uspto@dockettrak.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JOSEPH D. ROCCI and MICHAEL L. QUELLY
____________

Appeal 2018-000560
Application 12/888,181
Technology Center 2800
____________

Before ST. JOHN COURTENAY III, THU A. DANG, and
JOHN A. EVANS, Administrative Patent Judges.

DANG, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING
Appellant1 requests rehearing (“Req. Reh’g”) of the Patent Trial and
Appeal Board’s (“Board”) Decision mailed September 27, 2019
(“Decision”), in which we affirmed the Examiner’s decision to reject Claims
2–6, 8–11, 13, 14, 16, 20–22, and 24–39 under 35 U.S.C. § 103. We agree
with Appellant that the Decision overlooked or misapprehended certain
arguments presented by Appellant. The request for rehearing is GRANTED.

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 Phoenix
Broadband Technologies, LLC. Appeal Br. 1.
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ANALYSIS
A. The Board’s Constitutional Power
Appellant contends our Decision on Appeal should be vacated
because the Board lacks constitutional power to issue a Decision in this
proceeding under the Appointments Clause of the U.S. Constitution. Req.
Reh’g 1 (citing Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320, 1328
(Fed. Cir. 2019)). However, it is noted that Arthrex is directed to an appeal
of a final written decision from an inter partes review (IPR), but does not
address ex parte reviews. See Arthrex, 941 F.3d at 1328. Nevertheless, this
argument is foreclosed by the Supreme Court’s recent decision in U.S. v.
Arthrex, Inc., 141 S. Ct. 1970 (2021).
B. Rejection under 35 U.S.C. § 103 over Loncarevic, Windebank, and
Lim
The claims recite, in relevant part, “at each battery,” “applying a
pulse width modulated (PWM) excitation signal,” and “based on a battery
response to the application of the excitation signal, determining at least one
non-voltage health characteristic of each battery.” Claim 24 (emphasis
added). In affirming the Examiner’s decision to reject claims 2–6, 8–11, 13,
14, 16, 20–22, and 24–39 under 35 U.S.C. § 103 for obviousness based at
least on Loncarevic, Windebank, and Lim, we stated:
We also do not find any error with the Examiner’s
reliance on Windebank to teach and suggest a method “for
monitoring the health of . . . a battery,” comprising the step of
“applying a pulse width modulated (PWM) excitation signal,
and based on a battery response signal, determining at least one
non-voltage health characteristic of each battery.” Appeal Br.,
Claims App. 2. In particular, the Examiner finds that
“Windebank teaches determining a non-voltage characteristic
[(]charge capacity) of the battery (10).” Ans. 6.
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Application 12/888,181

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We are unpersuaded by Appellant’s contention that
Windebank’s PWM signals are not applied to the battery. App.
Br. 17. As shown in Figure 4 of Windebank, an excitation
signal (test current) is applied to the battery wherein the
excitation signal may comprise a PWM signal as modulated at
the inverter 42. FF 3.
Decision 11.
The Appellant argues that “Windebank does not apply PWM signals
to the battery” and that the Decision’s “Finding of Fact No. 3 says nothing
about Windebank applying a PWM signal to the battery.” Req. Reh’g 7.
On reconsideration, we agree with Appellant that the Decision
misapprehended or overlooked Appellant’s arguments in the Briefings that
the Windebank does not apply PWM signals to the battery. Req. Reh’g 7;
Appeal Br. 16–17.
Figure 4 of Windebank is reproduced below:

Figure 4 of Windebank discloses DC currents produced by voltage-
controlled rectifier 40 being supplied to inverter 42 which functions to invert
these DC currents to corresponding AC signals. Windebank 18:47–50.
Inverter 42 includes a pulse width modulator which generates PWM signals
corresponding to the test current and to the charging voltage which should
be supplied to battery 10. Id. at 18:53–55. The switched AC signal
Appeal 2018-000560
Application 12/888,181

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generated at the output of inverter 42 is supplied to rectifier 48 via
transformer 44. Id. at 19:21–22. Rectifier 48 then rectifies the switched AC
signal, resulting in the appropriate triangular or trapezoidal-shaped test
current, or the ramp-shaped charging voltage during test and charge cycle.
Id. at 19:21–27.
Thus, in Windebank, the PWM signal is used to create a triangular or
trapezoidal-shaped test current, or a ramp-shaped charging voltage which is
then applied to the battery. While Windebank states that “inverter 42 may
include a pulse width modulator which generates pulse width modulated
signals corresponding to the test current and to the charging voltage which
should be supplied to [the] battery” (id. at 18:53–57), Windebank explains in
subsequent paragraphs that the signal applied to the battery is created from
the PWM signal. Thus, although Windebank generates PWM signals, we
agree with Appellant that these triangular or trapezoidal-shaped test current,
or a ramp-shaped charging voltage signals being supplied to the battery
cannot be considered a PWM signal. See Windebank, Figs. 6 and 8; see also
col. 20, ll. 17–25:
Suffice it to say that, during the test cycle, the CPU generates
successive samples which represent a digitized version of a
triangular or a trapezoidal current control signal, which control
signal is converted to an analog control signal and supplied to
power output circuit 18. Hence, in response to this control
signal derived from CPU 30, the afore-described triangular or
trapezoidal test current is supplied to battery 10.

(emphasis added).

Therefore, we agree with Appellant that we overlooked or
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Application 12/888,181

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misapprehended Appellant’s arguments that the cited descriptions of
Windebank do not teach or suggest “at each battery,” “applying a pulse
width modulated (PWM) excitation signal,” and “based on a battery
response to the application of the excitation signal, determining at least one
non-voltage health characteristic of each battery” as recited. Further, the
Examiner has not presented another finding or reasoning that addresses the
above deficiencies. Accordingly, Appellant has persuaded us the Examiner
erred in rejecting claims 24, and 2–6, 8–11, 13, 14, 16, 20–22, and 25–39
standing therewith under 35 U.S.C. § 103 for obviousness.
CONCLUSION
For the foregoing reasons, we grant Appellant’s request for rehearing,
and we have modified our Decision such that we now decline to sustain the
Examiner’s rejections of claims 2–6, 8–11, 13, 14, 16, 20–22, and 24–39
under 35 U.S.C. § 103.

DECISION
Appellant’s request for rehearing is GRANTED.
We REVERSE the Examiner’s decision to reject claims 2–6, 8–11,
13, 14, 16, 20–22, and 24–39 under 35 U.S.C. § 103.
In Summary:
Outcome of Decision on Rehearing:
Claims 35 U.S.C § Reference(s)/Basis Denied Granted
4, 5, 10, 11,
20–22, 24,
25, 27, 28,
31–39
103 Loncarevic, Windebank, Lim
4, 5, 10,
11, 20–22,
24–28, 31–
39
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Application 12/888,181

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2, 3, 13, 14 103
Loncarevic,
Windebank, Lim,
Stocker
2, 3, 13, 14
6, 8, 16, 29 103
Loncarevic,
Windebank, Lim,
Sufrin-Disler
6, 8, 16, 29
9, 30 103
Loncarevic,
Windebank, Lim,
Sufrin-Disler,
Dunn
9, 30
Overall
Outcome
2–6, 8–11,
13, 14, 16,
20–22, 24–
39

Final Outcome of Appeal after Rehearing:
Claims 35 U.S.C § Reference(s)/Basis Affirmed Reversed
4, 5, 10, 11,
20–22, 24,
25, 27, 28,
31–39
103 Loncarevic, Windebank, Lim
4, 5, 10,
11, 20–22,
24–28, 31–
39
2, 3, 13, 14 103
Loncarevic,
Windebank, Lim,
Stocker
2, 3, 13, 14
6, 8, 16, 29 103
Loncarevic,
Windebank, Lim,
Sufrin-Disler
6, 8, 16, 29
9, 30 103
Loncarevic,
Windebank, Lim,
Sufrin-Disler,
Dunn
9, 30
Overall
Outcome
2–6, 8–11,
13, 14, 16,
20–22, 24–
39

Appeal 2018-000560
Application 12/888,181

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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).

GRANTED