Ex Parte 7332881 et al

Board of Patent Appeals and Interferences

Apr 28, 2011

95001278 (B.P.A.I. Apr. 28, 2011)

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.
95/001,278 12/07/2009 7332881 020529-9319 3148
27572 7590 04/28/2011
HARNESS, DICKEY & PIERCE, P.L.C.
P.O. BOX 828
BLOOMFIELD HILLS, MI 48303
EXAMINER
ENGLISH, PETER C
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
04/28/2011 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

CLUB CAR, INC.
Respondent
v.

TEXTRON INNOVATIONS INC.
Patent Owner, Appellant
____

Appeal 2011-005698
Inter partes Reexamination Control No. 95/001,278
United States Patent 7,332,881 B2
Technology Center 3900
____________

Before SALLY C. MEDLEY, KARL D. EASTHOM, and STEPHEN C.
SIU, Administrative Patent Judges.

EASTHOM, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2011-005698
Reexamination Control 95/001,278
Patent 7,332,881 B2

This proceeding arose from an a third party request on behalf of
Club Car, Inc. for an inter partes reexamination of U. S. Patent 7,332,881
B2, AC Drive System For Electrically Operated Vehicle, issued to Warren
Clark and Oliver A. Bell. Appellant, patent owner Textron Innovations Inc.,
appeals under 35 U.S.C. §§ 134(b) and 306 from the Examiner’s Right of
Appeal Notice (RAN) rejecting claims 32-38. (App. Br. 1-2.)1 Respondent,
Club Car, Inc., filed a Brief disputing contentions by Appellant and
supporting the Examiner’s rejections. (See Resp. Br. 1, 3.) The Examiner’s
Answer incorporates by reference the findings from the RAN. We have
jurisdiction under 35 U.S.C. §§ 134(b) and 306.
We affirm.

STATEMENT OF THE CASE
The ‘881 patent describes a drive system for an electric vehicle
powered by an electric motor. Based on certain inputs, a motor controller
sends drive signals to control the electric motor. (Col. 3, ll. 15-34;
Abstract.) These “inputs . . . may include a battery voltage input, a throttle
pedal position input, a break pedal position input, a key switch input, a
forward/neutral/reverse (FNR) input, and a brake full-stroke input.”
(Abstract.)

Claim 32, on appeal, follows:
32. A drive system for a vehicle, comprising: a motor for providing a
drive torque; a controller that receives a battery voltage input indicating a
state of charge of the battery, a throttle pedal position input that varies in

1 Reference is to Appellant’s Corrected Appeal Brief (Nov. 22, 2010.)
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accordance with a position of the throttle pedal, a brake pedal position input
that varies in accordance with a position of the brake pedal, a key switch
input, and a forward/neutral/reverse input, the controller generating a drive
signal for the motor based on the inputs, wherein the controller limits actual
motor speed to about zero RPM when the state of charge of the battery is
within a predetermined range and wherein the controller sends a signal to the
motor to decrease the speed of the motor when the vehicle is moving and
neither the throttle pedal nor the brake pedal is engaged.

The Examiner relies upon the following prior art references:
Klimo US 4,634,941 Jan. 6, 1987
Florey US 4,730,151 Mar. 8, 1988
Konrad US 5,376,869 Dec. 27, 1994
Suzuki US 5,568,024 Oct. 22, 1996
Fukaya US 5,764,009 June 9, 1998

Curtis PMC 1244 MultiModeTM Motor Controller Manual, Curtis
Instruments Inc. (Jan. 2001).

Curtis PMC 1236 & 1238 AC Induction Motor Controllers with VCL, Curtis
Instruments Inc. (May 2002).

Curtis 1243 Gen. 2 MultiModeTM Motor Controller Manual, Curtis
Instruments Inc. (Oct. 2002).

The Examiner adopted the following rejections proposed by the
Requestor, Respondent:
Claims 32-34 stand rejected under 35 U.S.C. 102(b) as being
anticipated by Curtis 1244.
Claims 32-34 stand rejected under 35 U.S.C. 103(a) as being obvious
over Florey and Curtis 1244.
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Claims 32 and 33 stand rejected under 35 U.S.C. 103(a) as being
obvious based on Florey and Curtis 1243.
Claim 32 stands rejected under 35 U.S.C. 103(a) as being obvious
based on Florey and Klimo.
Claim 32 stands rejected under 35 U.S.C. 103(a) as being obvious
based on Konrad and either Curtis 1244, Curtis 1243, or Klimo.
Claim 32 stands rejected under 35 U.S.C. 103(a) as being obvious
based on Suzuki and either Curtis 1244, Curtis 1243, or Klimo.
Claims 32 and 35-38 stand rejected under 35 U.S.C. 103(a) as being
obvious based on Fukaya and either Curtis 1244, Curtis 1243, or Klimo.
Claims 35-38 stand rejected under 35 U.S.C. 103(a) as being obvious
based on Curtis 1236, Fukaya, and either Curtis 1244, Curtis 1243, or
Klimo.
(RAN 22-38.)
PRINCIPLES OF LAW
“[T]he examiner bears the initial burden, on review of the prior art or
on any other ground, of presenting a prima facie case of unpatentability.”
In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). On appeal, Appellant
must “point out to the Board the argument, i.e., reasons, for th[e] view” that
Appellant considers “a ground or determination [by the Examiner] to be
clearly improper.” MPEP §2675 (discussing requirements for an inter
partes opening Brief).

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DISCUSSION
Curtis 1244 – Claims 32-34, Anticipation
Issues
Based on the arguments presented, the disputes of record raise the
following issues with respect to the anticipation rejection:
1) Did Appellant establish that the Examiner erred in finding that
Curtis 1244 discloses a battery voltage input indicating a state of charge
(SOC) of a battery system, and a controller limiting motor speed to about
0 RPM based on the SOC, as set forth in claim 32?
2) Did Appellant establish that the Examiner erred in finding that
Curtis 1244 discloses a throttle pedal position input that varies in accordance
with a position of the throttle pedal, and a brake pedal position input that
varies in accordance with a position of the brake pedal, as set forth in
claim 32?
Analysis
Appellant argues that “Curtis 1244 refers to a battery voltage that is
used to detect ‘undervoltage’ conditions” and, as such, does not teach a
“battery voltage input indicating a state of charge of the battery,” as recited
in claim 32. (App. Br. 6.) Respondent maintains that the ‘881 patent
“defines a method of detecting state of charge, or SOC, that is identical to
the method of undervoltage detection taught by Curtis.” (Resp. Br. 4.)
Respondent notes that the ‘881 patent describes the claimed SOC
detection method as follows: “Motor controller 120 may monitor the battery
pack 130 voltage under load or may monitor the internal resistance
(impedance) of the battery pack 130 in order to determine the battery
pack 130 state of charge (SOC).” (Id. (quoting 881 patent at col. 6,
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ll. 18-22) (emphasis deleted).) Respondent next points out that Curtis 1244
describes a similar voltage monitoring as follows: “‘Undervoltage
protection automatically cuts back the controller output if battery voltage is
detected below the undervoltage point at startup, or when the battery voltage
is pulled below the undervoltage point by an external load.’” (Id. at 5
(quoting Curtis 1244 at A-12) (emphasis deleted).)
Appellant fails to explain how claim 32 defines over this description
in Curtis 1244. (See App. Br. 6.) While it is conceivable that, under some
circumstances, the acts of indicating SOC and monitoring voltage conditions
involve distinct determinations, Appellant does not make this argument,
explain any distinction, or point to a definition of SOC. (Id.) As such,
Appellant fails to meet the appellate burden of clearly defining a distinction
between receiving a monitored voltage indicating undervoltage conditions of
a battery, as Curtis 1244 discloses, and receiving “a battery voltage input
indicating a state of charge [SOC] of the battery,” as claim 1 requires. See
In re Morris, 127 F.3d 1048, 1056 (Fed. Cir. 1997) (“It is the applicants’
burden to precisely define their invention, not the PTO’s.”); In re Baxter
Travenol Labs, 952 F.2d 388, 391 (Fed. Cir. 1991) (“It is not the function
of this court to examine the claims in greater detail than argued by
appellant . . . .”).
Moreover, by definition, a volt is a measure of energy per charge –
i.e., voltage quantifies the energy state of each charge – i.e., the SOC.2

2 Voltage is a measure of joules (work or energy) per coulomb (charge).
Edward C. Jordan & Keith G. Balmain 24, Electromagnetic Waves and
Radiating Systems (1968). See also infra note 4 (prior art Curtis 1243
discusses SOC in terms of voltage).
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Thus, monitoring the voltage for a low condition, as the Curtis 1244
controller does, implicitly indicates the SOC. As such, for this additional
reason, the Examiner’s finding at least constitutes to a prima facie showing
which Appellant does not rebut.
Appellant also asserts “that Curtis 1244 does not teach or suggest . . .
‘a throttle pedal position input that varies in accordance with a position of
the throttle pedal’ and a ‘brake pedal position input that varies in accordance
with a position of the brake pedal’,” as claim 32 recites. (App. Br. 6.)
Appellant asserts that Curtis teaches “only one pedal interlock input . . . and
that it can be alternatively used with a ‘switch connected to the throttle
mechanism or wired into the brake pedal circuit,’ but not both.” (App. Br. 6
(citing Curtis 1244.).)
According to Respondent, “the Examiner correctly held that Curtis
1244 provides throttle pedal position inputs” including use of
“[p]otentiometers as . . . position transducers,” and also teaches, in
combination therewith, a pedal interlock that varies in accordance with a
position of the brake pedal. (Resp. Br. 5.) The record supports
Respondent’s and the Examiner’s similar position. Curtis 1244 teaches
monitoring both pedal and throttle position inputs at different controller
pins; i.e., throttle pedal position input at pins 13-16, and a separate brake
pedal position input via a pedal switch or interlock at pin 8. (Curtis 1244 p.
6 (showing pedal switch input pin 8 and throttle input pins 13-16), p. 19
(discussed below); accord RAN 22 (citing Curtis 1244 at 6, 10-15, 19, 47-
48); Resp. Br. 6.)
Appellant agrees with the Examiner that pedal input pin 8 in the
Curtis 1244 controller constitutes a pedal interlock input. (App. Br. 6.)
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Appellant’s discussion of the alternatives quoted supra mischaracterizes the
disclosure of Curtis 1244 and fails to overcome the separate pin input
teachings. That is, contrary to Appellant’s characterization, the brake pedal
switch and throttle inputs both function together, as a combination, under
each of the two circuit options discussed by Appellant; i.e., regardless of
whether 1) the brake pedal switch is “add[ed] [into a throttle circuit] as a
safety feature to protect against throttle failures,” or 2) it is “wired into the
brake pedal circuit to automatically force zero controller output when the
brake pedal is depressed, regardless of throttle request” (Curtis 1244 p. 19).
Appellant also asserts that disabling power supplied to an electric
motor via the controller in Curtis 1244 is distinct from the claim 32
recitation of limiting “actual motor speed to about zero RPM when the state
of charge of the battery is within a predetermined range.” (App. Br. 5.) To
support the argument, Appellant relies on the following passage in the ‘881
patent:
For a SOC less than 20%, no motive power is supplied to
power vehicle 190. The logic may thus limit commanded
speed to zero RPM, the electrical brake 180 may be
de-energized, and motor braking via motor 110 may be
enabled to protect battery pack 130 from being too deeply
discharged. The electric brake 180 may be energized by the
run/tow switch being selected to TOW at this latter SOC
range.
(App. Br. 5 (quoting the ‘881 patent at col. 6, ll. 28-35) (emphasis by
Appellant).)

As Respondent points out, the quoted passage supra shows that the
‘881 patent limits motor speed by not supplying motive power, whereas
Curtis 1244 similarly limits actual speed by not supplying motive
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(i.e., electric) power (in response to low voltage/SOC). In addition to
cutting off all power, Respondent points out that Curtis also cuts back the
duty cycle of the motor current draw during low voltage conditions.
(See Resp. Br. 4 (citing Curtis at A-13 and the ACP at 17 and stating that
Appellant’s arguments “equate the two” functions of power removal).)
Curtis explains that at the undervoltage limit; i.e., “a severe undervoltage
condition (due to battery drain or external load), the controller continues to
behave in a predictable fashion, with its output disabled.” (Curtis at A-13.)
The ‘881 patent passage quoted supra also shows that an electric
brake may or may not be applied to stop the motor – further indicating the
inevitable - electric motors stop running (i.e., produce 0 RPM) without
electricity. Under these circumstances, Appellant has failed to show a
patentable distinction between claim 32 and Curtis 1244. Both the ‘881
patent and Curtis 1244 limit motive power pursuant to monitoring battery
voltage conditions. Limiting and eventually cutting motor input power off,
as the Curtis 1244 controller does pursuant to battery undervoltage SOC,
limits the actual motor speed to about 0 RPM, as set forth in claim 32.
Pursuant to the foregoing discussion, the anticipation rejection based
on Curtis 1244 of claim 32 is sustained, as is that of claims 33 and 34
because Appellant does not present separate patentability arguments for
these claims.
Florey and Curtis 1244 – Claims 32-34, Obviousness
Issues
The contentions of record raise the issues of whether the combination
of Florey and Curtis 1244 renders obvious a controller receiving a battery
voltage input indicating an SOC of a battery system and limiting actual
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motor speed based on the SOC, as set forth in claim 32, whether Florey and
Curtis 1244 are properly combinable, and whether Curtis 1244 fails to
enable braking in motors.
Analysis
With respect to the claim 32, Appellant maintains that Florey’s system
monitors current instead of voltage. (App. Br. 7-8 (citing Taylor Decl.
¶ 12).) As Respondent points out, Curtis 1244 monitors voltage, rendering
the claimed limitation obvious for the purpose of protecting the voltage
system of Florey. (Resp. Br. 6, n.3.)
Appellant alleges that adding the voltage protection of Curtis 1244 to
the similar electric motor vehicle control system of Florey would
fundamentally change the principle of operation of Florey because Florey
monitors current in a motor armature while Curtis 1244 monitors voltage in
batteries. (See App. Br. 9.) As Respondent maintains, such mere
allegations do not show how adding the Curtis 1244 voltage battery
protection system hinders the Florey motor current monitoring system.
(Resp. Br. 7.) Rather, the two distinct motor control circuit portions appear
complementary since the Curtis 1244 system can be used to protect a
modified version of Florey’s battery system. (See id.)
Appellant also asserts alleged shortcomings in Curtis 1244 based
substantially on the same reasons discussed supra pursuant to the
anticipation rejection (i.e., an asserted lack of a teaching of determining
SOC and limiting actual motor speed thereby). (See App. Br. 8-9.) Based
on the discussion supra of Curtis 1244, Appellant’s assertions are
unconvincing. (Accord Resp. Br. 6.)
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Appellant’s mere allegation that Curtis 1244 does not teach “the
controller decreasing ‘the speed of the vehicle to a stop position’ as required
by Claims 33 and 34” (App. Br. 9) because braking is impossible with a DC
controller, fails to distinguish claims 33 and 34 over the combination. As
Respondent maintains, Curtis 1244 teaches that at a zero throttle request for
speed (i.e., throttle is not depressed), the controller will slow the vehicle to a
stop and keep the motor speed at zero. (Resp. Br. 7 (citing Curtis 1244 at 37
(disclosing “[a]t zero throttle, the restraint function will attempt to keep the
motor at zero speed”).)
Appellant also states that Curtis 1244 is silent as to “what has to apply
the brake, let alone when or how the brake would be applied, making it non-
enabling.” (App. Br. 9-10.) Apparently, Appellant presents this argument
with respect to claims 33 and 34, though the claims recite different brake
limitations (i.e., respectively reciting that the controller engages and
deenergizes an electrical brake “when the vehicle comes to a stop”). The
passage quoted supra (i.e., the ‘881 patent at col. 6, ll. 28-35) indicates that
energizing the brake releases it to allow the vehicle to move – hence
engaging and deenergizing such a brake after stopping as claims 33 and 34
require, implies (what skilled artisans or laypersons would recognize as) an
emergency brake function in an electrically actuated brake.
In any event, contrary to the argument, there is no requirement that a
secondary teaching in the prior art guarantees success, before providing a
reason to combine, as it is sufficient that a skilled artisan would perceive
from the prior art a reasonable likelihood of success. See Alza Corp. v.
Mylan Labs., Inc., 464 F.3d 1286, 1295 (Fed. Cir. 2006). In addition, the
argument fails to show or even allege an amount of experimentation that
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would have been undue in enabling such a brake. See Elan Pharm., Inc. v.
Mayo Found. for Med. Educ. & Research, 346 F.3d 1051, 1054-55 (Fed.
Cir. 2003)(stating that factual premises required to demonstrate non-
enablement of an anticipating reference must include a showing of undue
experimentation, and citing In re Wands, 858 F.2d 731 (Fed. Cir. 1988)).
Appellant’s “argument . . . [also] fails to recognize that prior art references
must be ‘considered together with the knowledge of one of ordinary skill in
the pertinent art.’” In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994)
(citation omitted).
For example, the argument fails to address the Examiner’s findings
concerning the “mechanically biased, electrically-released brake” engaged
by the controller in Curtis 1244. (RAN 25 (citing Curtis 1244 at 2, 3, 6, 18,
19, 45, and 49-50.).) Similar to the situation in Paulsen, 30 F.3d at 1480, in
which a prior art reference “only discloses a box for a calculator,” the
teachings of record here show that the skill level of artisans involved in the
motor control and braking of electrical vehicles was similarly “quite
advanced,” id.
Assuming arguendo that a skilled artisan would not have known
immediately how to implement a brake in light of the combined teachings at
issue here, such an artisan would have been amply motivated to solve any
alleged problem associated with braking and controlling the speed of a
motor on such a vehicle at the least for common sense safety reasons, legal
requirements, sales reasons, and/or simply to provide a known emergency
brake function for a vehicle at rest. “‘Our suggestion test is in actuality quite
flexible and not only permits, but requires, consideration of common
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knowledge and common sense.’” KSR Int’l Co. v. Teleflex, Inc., 550 U.S.
398, 421 (2007) (citation omitted).
In sum, skilled artisans would have recognized that draining a battery
to maintain high speeds and providing speed without braking must be
avoided; thereby rendering obvious a system having a battery SOC-motor
speed feedback vehicle system with a brake for stopping during transit, or
after stopping (i.e., providing a known emergency or other brake function
according to claims 33 and 34). Based on the foregoing discussion, the
rejection of claims 32-34 based on the combination of Florey and Curtis
1244 is sustained.
Florey and Curtis 1243 – Claims 32 and 33, Obviousness
Similar to the argument presented against Curtis 1244, Appellant
argues that merely disengaging power to the motor does not limit actual
motor speed. (App. Br. 10.) Respondent maintains that Curtis 1243
teaches use of a battery discharge indicator (BDI) to vary the output to the
motor from 0% to 100% with 0% corresponding to no power being supplied
to the motor, thus limiting motor speed. (Resp. Br. 7-8.)
The Examiner similarly finds that Curtis 1243 employs a battery
discharge indicator (BDI) that calculates and displays the battery SOC, so
that no power is supplied to the motor when the SOC is low.3 The Examiner
finds that a BDI disable feature can be preset by a user to a minimum battery
voltage level below which the SOC is considered to be 0%. (RAN 26 (citing
Curtis 1243 at 21, 49, ad 50).) The controller limits the vehicle speed by
adjusting “[t]he BDI limit speed . . . from 0 to 100% of drive output” (Curtis

3 Curtis 1243 at 49 discusses the “state-of-charge” (i.e., SOC) displayed in
the BDI in terms of voltage.
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1243 at 50) – i.e., corresponding to 0 RPM at the low end of the range
according to the Examiner (RAN 26). Appellant fails to show otherwise
according to Respondent. (Resp. Br. 8.)
Respondent’s and the Examiner’s similar positions are more
persuasive than Appellant’s position for reasons largely explained supra
with respect to Curtis 1244. Electric motors require electric power.
Appellant fails to provide any explanation or reason as to why disengaging
electricity to an electric motor allows it to keep running at greater than about
0 RPM. Setting the motor drive output to 0% means that the motor (at least
eventually) must stop rotating, or at the least, slow down to about 0 RPM.
Also, Appellant’s reliance for support of the argued limitation; i.e., the
passage stating that “[f]or a SOC less than 20%, no motive power is supplied
to power [the] vehicle” (881 Patent, col. 6, ll. 28-29), fails to distinguish
over the similar operation in Curtis 1243 as Respondent maintains. (Resp.
Br. 8.)
Appellant’s remaining assertions alleging, inter alia, a change in the
principle of operation of Florey, a lack of motivation for the combination,
and a failure of the references to suggest how to stop an electric vehicle or
apply a brake as claim 33 requires, track the assertions against Florey and
Curtis 1244 (see App. Br. 10-11), without adding substantive arguments or
evidence. As such, the assertions are unpersuasive for reasons similar to
those discussed supra (since, inter alia, Curtis 1244 and 1243 facially
disclose similar systems at least as they relate to the claim limitations
(compare RAN 22-23 with RAN 26)). Based on these similar arguments
and disclosures, and Respondent’s remarks in light of the Examiner’s
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findings and Appellant’s arguments, Respondent’s position (Resp. Br. 8-9)
to Appellant’s arguments against claims 32 and 33 is persuasive.
In light of the applied references, skilled artisans would have
recognized that draining a battery to maintain high speeds without braking
must be avoided; thereby rendering obvious a system which limits motor
speed as the battery drains as claim 32 requires, and rendering obvious a
system which stops a vehicle during transit, and that engages an electrical
brake after a vehicle comes to rest as claim 33 requires (i.e., a brake which
provides a normal emergency brake function for allowing or disallowing
further movement). Pursuant to the foregoing discussion, the rejection of
claims 32 and 33 based on the combination of Florey and Curtis 1243 is
sustained, as is the rejection of claim 33.
Florey and Klimo - Claim 32, Obviousness
Appellant presents similar arguments as those discussed above (i.e.,
alleging a lack of motivation, a lack of a suggestion for limiting the motor
speed, and alleging a change in the principle of operation of Flory), based,
inter alia, on the fact that Klimo’s system employs a joystick while Florey’s
system employs a throttle and brake. These arguments (App. Br. 11-13) are
not persuasive and fail to show that the combination constitutes anything
more than a use of Klimo’s low voltage motor protection circuit in the motor
control system of Florey for the purpose of providing reliable operation
under low voltage battery conditions, as the Examiner found (see RAN 27-
28) and as Respondent similarly maintains (Resp. Br. 9-10). In other words,
contrary to Appellant’s allegations concerning a fundamental change in the
principle of operation of Florey based on the use of Klimo’s system, and an
alleged lack of motivation for the combination, Respondent’s rationale,
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summarizing the Examiner’s position, that “the low voltage lockout circuit
of Klimo . . . would protect the system of Florey in the event of a low battery
state of charge” in a complimentary fashion (id. at 10), has merit.
In addition, as the Examiner found (RAN 27-28) and Respondent
maintains, contrary to Appellant’s arguments that Klimo’s low voltage
circuit does not limit the actual speed of the motor to 0 RPM (App. Br. 12),
Klimo’s “‘low voltage sensing circuit . . . stop[s] the motors’” when the
battery voltage is too low (Resp. Br. 9 (quoting Klimo; col. 6, ll. 25-30)).
In essence, skilled artisans would have recognized that draining a
battery to maintain high speeds must be avoided; thereby rendering obvious
limiting motor speed as the battery drains. Pursuant to the foregoing
discussion, the rejection of claim 32 based on the combination of Florey and
Klimo is sustained.
Konrad and either Curtis 1244, Curtis 1243, or Klimo
Claim 32, Obviousness
Respondent’s responses (Resp. Br. 10-11) to Appellant’s arguments
(App. Br. 13-16) are persuasive. Similar to Appellant’s allegations supra,
Appellant argues that the references fail to teach or render obvious the
claim 32 limitation of “a battery voltage input indicating a state of charge of
the battery . . . wherein the controller limits actual motor speed to about zero
RPM when the state of charge of the battery is within a predetermined
range.” (App. Br. 13-16.)
According to the Examiner’s findings, at least in terms of the claim
limitations argued, Konrad discloses a similar electric vehicle motor system
to that of Florey. (Compare RAN 28-29 with RAN 23-25; accord App.
Br. 15 (describing aspects of Florey and Konrad as similar)). As
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Respondent notes, Appellant’s arguments asserted against the Konrad-based
combination largely track those addressed supra with respect to the Florey-
based combination (involving the same secondary references). (Resp. Br.
10.)
As Respondent also notes (Resp. Br. 10, n. 6), Appellant is correct in
that Konrad does not teach a battery voltage input indicating a state of
charge of the battery, but the Examiner agrees with this position and does
not rely on Konrad for such a teaching (RAN 29). Instead, the Examiner
relies on the secondary references in the alternative, i.e., Curtis 1244,
Curtis 1243, or Klimo, for the disputed teaching. Hence, the argument does
not aid Appellant. (See App. Br. 14 (relying in part on the Taylor Dec’l at
¶ 14).)
As discussed supra, Curtis 1244, Curtis 1243, and Klimo each show
that this voltage monitoring and consequent speed limiting feature were well
known. As a consequence, such known features would have been obvious as
providing no more than predictable results to similar systems. (Accord
Resp. Br. 10-11, n. 6; RAN 29-30.) Appellant’s remaining arguments,
alleging inter alia, a lack of a reason to combine and a change in the
operation principle of Konrad (App. Br. 13), are outweighed by
Respondent’s responses (Resp. Br. 10-11) thereto and the Examiner’s
findings (RAN 28-30) for reasons similar to those discussed supra with
respect to the combination involving Florey. In sum, the secondary
teachings directed to monitoring vehicular battery voltage and limiting
motor speed during low SOC conditions would have protected Konrad’s
similar vehicle voltage control system. (See Resp. Br. 10-11.) In essence,
skilled artisans would have recognized that draining a battery to maintain
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high speeds must be avoided; thereby rendering obvious limiting motor
speed as the battery drains.
Pursuant to the foregoing discussion, the rejection of claim 32 based
on the combination of Konrad and either Curtis 1244, Curtis 1243, or Klimo
is sustained.
Suzuki and either Curtis 1244, Curtis 1243, or Klimo
Claim 32, Obviousness
The issues presented here are essentially the same as those involving
the combination of Konrad and the same secondary references as listed
supra. Each party agrees that Suzuki, like Konrad, does not teach a battery
voltage input indicating the SOC of the battery. (See App. Br. 17 (citing
Taylor Dec’l at ¶ 17); Resp. Br. 11, n. 7; RAN 31). Appellant’s assertions
that the combination would not have been obvious or otherwise satisfy the
disputed limitations in claim 32 (App. Br. 16-18) do not outweigh the
Examiner’s findings (RAN 30-32) and Respondent’s arguments for reasons
similar to those discussed supra with respect to the combination involving
Konrad and Florey. In sum, the secondary teachings directed to monitoring
vehicular battery voltage and limiting speed to zero RPM based on the
battery SOC would have protected Suzuki’s similar vehicle voltage control
system during low SOC conditions. (See Resp. Br. 11.)
Pursuant to the foregoing discussion, the rejection of claim 32 based
on the combination of Suzuki and either Curtis 1244, Curtis 1243, or Klimo
is sustained.
Fukaya and either Curtis 1244, Curtis 1243, or Klimo
Claims 32 and 35-38, Obviousness
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19
As Respondent points out, Appellant’s arguments (Resp. Br. 18-21)
here are similar to the arguments presented with respect to those involving
Florey, Konrad, and Suzuki. (Resp. Br. 12.) As such, as Respondent also
maintains, the arguments fail to show error in the Examiner’s finding of
obviousness (id.; RAN 33-35). Contrary to Appellant’s position (App.
Br. 18-21), in light of the relied-upon teachings, adding voltage sensing to
limit motor speed under low SOC conditions to a similar vehicle motor
control system that also senses current does not destroy the system’s
principle of operation, but rather, adds a different type of beneficial
protection to it, rendering the claimed invention obvious.
Pursuant to the foregoing discussion, the rejection of claim 32 based
on the combination of Fukaya and either Curtis 1244, Curtis 1243, or Klimo
is sustained, as is that of claims 35-38 because Appellant does not present
separate patentability arguments for these latter claims.
Curtis 1236, Fukaya, and either Curtis 1244, Curtis 1243, or Klimo
Claims 35-38, Obviousness
Appellant’s arguments track the unpersuasive arguments supra with
respect to Florey, Konrad, Suzuki, and Fukaya. (App. Br. 21-23.) In
addition, Appellant also focuses on the fact that the Curtis 1236 controller
controls an AC motor, while the second references deal with DC motors.
(App. Br. 22.) This argument is not persuasive because the combination
involves the control of such motors and systems involved therewith. The
disputed limitation in claim 35, like that in claim 32, simply involves
limiting motor speed based on the SOC of the battery. As such, the relied
upon teachings render the claimed invention obvious, for reasons amply
discussed supra.
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20
Despite Appellant’s related assertions that the ‘881 patent is distinct
(App. Br. 23-24), Appellant has not demonstrated that the simple speed
control of one type of motor (i.e., AC) precludes or renders unobvious a
similar simple control of another type (i.e., DC), or that the SOC monitoring
of batteries changes appreciably, if at all, based on the type of motor
involved.
Further, as Respondent points out, the ‘881 patent discusses both
types of motors and discloses a motor control system, implying at the least,
that certain control functions are transferable between the two types of
motor. (See Resp. Br. 13.) In a similar fashion, Respondent relies on Suzuki
which discloses a motor control system applicable to AC and DC motors.
(Id. (citing Suzuki at col. 8, ll. 20-230.) Appellant’s submission that “Patent
Owner’s claims are not limited to AC motor control systems” (App. Br. 24)
similarly indicates that AC and DC motors can be controlled by similar
control systems.
Pursuant to the foregoing discussion, the rejection of claim 35 based
on the combination of Curtis 1236 and Fukaya, and either Curtis 1244,
Curtis 1243, or Klimo, is sustained, as is that of claims 36-38 because
Appellant does not present separate patentability arguments for these latter
claims (see App. Br. 23).
DECISION
The Examiner’s decision to reject claims 32-38 is affirmed.
Requests for extensions of time in this inter partes reexamination
proceeding are governed by 37 C.F.R. § 1.956. See 37 C.F.R. § 41.79.

AFFIRMED
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Patent 7,332,881 B2

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ak

Orrick, Herrington & Sutcliffee, LLP
1000 Marsh Road
Menlo Park, California 94025-1015

Third Party Requester:

Docket No.: 020529-9319
Michael Best & Friedrick, LLP
100 East Wisconsin Avenue
Milwaukee, Wisconsin 53202