Yang, Xiao Guang. et al.

Patent Trials and Appeals Board

Oct 13, 2020

2019000850 (P.T.A.B. Oct. 13, 2020)

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.
14/336,741 07/21/2014 Xiao Guang Yang 83407579 8533
28395 7590 10/13/2020
BROOKS KUSHMAN P.C./FGTL
1000 TOWN CENTER
22ND FLOOR
SOUTHFIELD, MI 48075-1238
EXAMINER
TRISCHLER, JOHN T
ART UNIT PAPER NUMBER
2859
NOTIFICATION DATE DELIVERY MODE
10/13/2020 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):
docketing@brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte XIAO GUANG YANG and THEODORE JAMES MILLER1
____________

Appeal 2019-000850
Application 14/336,741
Technology Center 2800
____________

Before BEVERLY A. FRANKLIN, MICHELLE N. ANKENBRAND, and
CHRISTOPHER C. KENNEDY, Administrative Patent Judges.

KENNEDY, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING
The Appellant filed a Request for Rehearing (“Request” or “Req.”)
under 37 C.F.R. § 41.52 seeking reconsideration of our Decision dated June
15, 2020 (“Decision” or “Dec.”), in which we affirmed the Examiner’s
rejections of claims 9–11, 13, 14, 16, 17, 19, and 20.
We DENY the Request.
ANALYSIS
A request for rehearing “must state with particularity the points
believed to have been misapprehended or overlooked by the Board.”

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. The Appellant identifies the real party in interest as Ford
Global Technologies, LLC. Appeal Br. 2.
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Application 14/336,741
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37 C.F.R. § 41.52(a). It may not rely upon new evidence or new arguments
except as permitted by § 41.52 paragraphs (a)(2) though (a)(4). Id.
We have considered the Request and determine that the Appellant has
not persuasively identified any points that our original Decision
misapprehended or overlooked that would warrant a different outcome on
rehearing. In particular, we find that the Appellant’s arguments on rehearing
are new arguments that could have—and should have—been made in the
Appeal Brief. See 37 C.F.R. § 41.52(a).
The Appellant first states that “[t]he Board asserts that . . . it would
have been obvious . . . to terminate charging at the maximum voltage
disclosed by Andrieu, i.e., Ur = Uf + (Ic x R), because that is the voltage at
which Andrieu teaches ending a first charging step.” Req. 2 (quoting
Dec. 7). The Appellant then quotes certain portions of Andrieu and alleges
that Andrieu desires a final charge factor of 75% to 95%, but that
termination at the end of Andrieu’s first charging step would result in a
charge factor of only 60%. See Req. 2. The Appellant argues: “Modifying
Andrieu to terminate charging at the end of the first charging step (when the
charge factor is 60%) as suggested by the Board would prevent [Andrieu]
from achieving its very purpose of achieving a charge factor in the
traditional range of 75% to 95%.” Id.
As an initial matter, that argument is untimely. Consistent with our
original Decision, the most reasonable understanding of the Final Action is
that the Examiner proposes terminating charging at the end of Andrieu’s first
charging step:
Andrieu teaches terminating the charging when the battery
voltage exceeds a recommended maximum voltage (Uf) by a
variable amount defined by the current and a battery resistance
(Ii*R or R-term shown in Fig. 1, the Ui term [i.e. reference
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voltage] in Fig. 1 shows the amount; the constant current
charging is terminated at this time).
Final Act. 4 (bracketed material in original; emphasis added). In particular,
the Examiner’s reference to the “Ui term” of Figure 1 (i.e., Ui = Uf + (Ii x R),
see Andrieu Fig. 1), and the Examiner’s observation that “the constant
current charging is terminated at this time,” indicates reliance on Andrieu’s
first charging step because Andrieu discloses constant current during its first
charging step. See Andrieu at 3:46–4:10 (referring to “a first step at constant
current” and stating that, “during the second step . . . . [c]urrent decreases
down to a very low final value”). The Examiner goes on to find that “Lee
teaches performing constant current [charging] until the battery reaches a
predetermined voltage (i.e. the Uf value of Andrieu), whereby the battery
charging is terminated.” Final Act. 5 (emphasis added). The Examiner then
determines that it would have been obvious “to modify Andrieu with Lee to
protect the battery, decrease size, and increase the efficiency.” Id.
In view of the Examiner’s discussion, the Examiner’s rationale in the
Final Action is most reasonably understood as proposing termination of
charging at the end of Andrieu’s first charging step in view of Lee.2 See

2 We recognize that, in the Examiner’s Answer, the Examiner appears to
additionally rely on Andrieu’s second step. See Ans. 3, 5. Although we
acknowledge that the Examiner’s discussion in the Answer of Andrieu’s
second step creates some ambiguity as to the Examiner’s rationale, for the
reasons set forth herein, we find that it was sufficiently apparent in the Final
Action that the Examiner was relying on Andrieu’s first step that the
Appellant’s arguments about Andrieu’s first step could have and should
have been raised prior to a rehearing request. Additionally, we note that our
affirmance of the Examiner’s rejection was based on our understanding of
the Examiner’s rationale set forth in the Final Action; we did not rely on
Andrieu’s second step. See generally Dec. The Appellant has not argued
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Final Act. 4–5. In effect, in the Final Action the Examiner finds that it
would have been obvious to substitute Lee’s termination step for Andrieu’s
second (decreasing current) step as a known alternative method of protecting
a battery from damage due to overcharging. See id.
The arguments in the Appeal Brief reflect that the Appellant also had
that understanding of the Final Action. See generally Appeal Br. For
example, the Appellant argued in the Appeal Brief:
Andrieu teaches that “[t]he reference voltage Ur determining the
end of the first step is set by the following equation Ur = Uf +
(IcxR).” Andrieu, col. 2, lines 20-23. Andrieu further teaches
that “[a] single measurement suffices to determine the reference
voltage for the first step since current is then constant.” Andrieu,
col. 2, lines 34-35. Andrieu teaches that the reference voltage
during the first step is constant. As the claims require that a cell
voltage exceeds a recommended maximum voltage by an amount
that varies during charging, Andrieu does not teach or suggest
this feature.
Appeal Br. 6 (emphasis added). That discussion, on its face, concerns only
the first step of Andrieu’s method, and it argues only that Andrieu teaches a
constant voltage rather than a voltage that varies during charging. See id. It
does not suggest that terminating charging at the end of Andrieu’s first step
would have prevented Andrieu from achieving its purpose, as argued in the
Request; nor does it raise arguments about Andrieu’s second step or
otherwise indicate that the Appellant understood the Final Action to be
relying on the Andrieu’s second step. Similarly, in the Appellant’s Reply
Brief, the Appellant argued that “[t]he first phase of Andrieu . . . does not
teach or suggest exceeding a recommended voltage by an amount that varies

that our affirmance of the Examiner’s rejection should be designated as a
new ground of rejection. See generally Req.
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during charging as claimed.” Reply 2. The Appellant did not argue that
terminating Andrieu’s charging at the end of Andrieu’s first step in view of
Lee would have defeated Andrieu’s purpose. See id.
Accordingly, we determine that the Appellant’s argument concerning
Andrieu’s purpose is untimely. See 37 C.F.R. § 41.52(a).
Even if the Appellant’s argument were timely, however, it would fail
to persuasively identify a basis for us to reach a different result on rehearing.
In particular, we observe that the 60% charge factor on which the Appellant
relies in the Request concerns an embodiment of Andrieu on which the
Examiner does not rely. Andrieu teaches a 60% charge factor for an
embodiment in which a first step ends when a voltage of 4.2 is reached. See
Andrieu at 3:47–56. The Examiner’s rejection, and our Decision, rely on the
“alternative[]” embodiment of Andrieu’s first step in which the “reference
voltage is calculated by summing the end-of-charge voltage (4.2 V) and the
product of the current (1 A) multiplied by the ohmic resistance (0.1 Ω) of the
storage cell.” See id. at 3:57–65. The Appellant does not allege that
termination of charging at the end of that alternative first step would have
resulted in a charge factor that defeats Andrieu’s purpose. See Req.
The second argument in the Request is also untimely. The Appellant
argues:
Andrieu already provides techniques for rapid cell charging
“without any risk of damaging [cells] and reducing their
lifetime.” And where a secondary reference (Lee) purports to
add a feature (“protect the battery from damage due to
overcharging”) already present in a primary reference (Andrieu),
there is no motivation to combine.
Req. 2.
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In the Final Action, the Examiner finds that “[i]t would have been
obvious to modify Andrieu with Lee to protect the battery, decrease size,
and increase the efficiency.” Final Act. 5 (emphasis added).
Notwithstanding the Examiner’s explicit finding in the Final Action
that battery protection would have been a motivation “to modify Andrieu
with Lee,” id., we do not discern in either the Appeal Brief or the Reply
Brief the argument that the Appellant now raises on rehearing; i.e., that no
motivation exists because Andrieu’s battery is already protected without any
need for modification in view of Lee. See Req. 2. The Appellant has not
asserted that, or identified where, such an argument was previously made.
See id.
Accordingly, we determine that the Appellant’s argument concerning
motivation to combine Andrieu and Lee is untimely, and we decline to
consider it on rehearing. See 37 C.F.R. § 41.52(a).
CONCLUSION
The Decision has been reconsidered, but, for the reasons set forth
above, the Request is DENIED with regard to modifying the result of the
Decision.
Outcome of Decision on Rehearing:
Claims
Rejected
35
U.S.C. § References Denied Granted
9, 11, 13,
14, 16, 17 103 Andrieu, Zhong, Lee
9, 11, 13, 14,
16, 17
10 103 Andrieu, Zhong, Lee, Schaefer 10
19 103 Andrieu, Zhong, Lee, Ostergaard 19
20 103 Andrieu, Lee, Frey, Dong 20
Overall 9–11, 13, 14,
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Claims
Rejected
35
U.S.C. § References Denied Granted
Outcome 16, 17, 19, 20

Final Outcome of Appeal after Rehearing:
Claims
Rejected
35
U.S.C. § References Affirmed Reversed
9, 11, 13,
14, 16, 17 103 Andrieu, Zhong, Lee
9, 11, 13,
14, 16, 17
10 103 Andrieu, Zhong, Lee, Schaefer 10
19 103 Andrieu, Zhong, Lee, Ostergaard 19
20 103 Andrieu, Lee, Frey, Dong 20
Overall
Outcome
9–11, 13, 14,
16, 17, 19, 20
DENIED