Ex Parte Bryan et al

Patent Trials and Appeals Board

May 3, 2019

14800061 - (D) (P.T.A.B. May. 3, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/800,061 07/15/2015
46442 7590 05/07/2019
CARLSON, GASKEY & OLDS, P.C./Ford
400 W. MAPLE RD.
SUITE 350
BIRMINGHAM, MI 48009
FIRST NAMED INVENTOR
Seth Anthony Bryan
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
83554137; 67186-197 PUS 7291
EXAMINER
NGUYEN, CUONG H
ART UNIT PAPER NUMBER
3663
NOTIFICATION DATE DELIVERY MODE
05/07/2019 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):
cgolaw@yahoo.com
ptodocket@cgolaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SETH ANTHONY BRYAN and
BRYAN MICHAEL BOLGER1
Appeal2018-006297
Application 14/800,061
Technology Center 3600
Before MICHAEL L. HOELTER, AR THURM. PESLAK, and
ALYSSA A. FINAMORE, Administrative Patent Judges.
HOELTER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is a decision on appeal, under 35 U.S.C. § 134(a), from the
Examiner's Final Rejection of claims 1-20. App. Br. 2. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM the Examiner's rejections of claims 1-20 and designate
our affirmance as a NEW GROUNDS OF REJECTION pursuant to 37
C.F.R. § 41.50(b).
1 "Ford Global Technologies, LLC, is the assignee of the entire right in this
application." App. Br. 1. Accordingly, we proceed on the basis that, for
purposes of this appeal, Ford Global Technologies, LLC is the "Appellant."
Appeal2018-006297
Application 14/800,061
THE CLAIMED SUBJECT MATTER
The disclosed subject matter "relates to controlling regenerative
braking to improve efficiency of an electrified vehicle." Spec. ,r 1. Method
claim 1, system claim 11, and system claim 18 are independent. Claims 1
and 11 are illustrative of the claims on appeal and are reproduced below.
1. A braking method, comprising:
permitting an amount of regenerative braking in an
electrified vehicle if an upcoming deceleration is detected; and
reducing the amount of regenerative braking if the
upcoming deceleration is not detected.
11. An adaptive regenerative braking system, comprising:
a monitoring assembly; and
a regenerative braking assembly that applies more
regenerative braking torque to an electrified vehicle when an
upcoming deceleration is detected by the monitoring assembly
than when the upcoming deceleration is not detected by the
monitoring assembly.
REFERENCE RELIED ON BY THE EXAMINER
Suzuki US 2015/0183433 Al July 2, 2015
THE REJECTIONS ON APPEAL
Claims 1-8 and 10-15 are rejected under 35 U.S.C. § I02(a)(2) as
anticipated by Suzuki.
Claims 9 and 16-20 are rejected under 35 U.S.C. § 103 as
unpatentable over Suzuki.
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ANALYSIS
The rejection of claims 1-8 and 10---15
as anticipated by Suzuki
Appellant argues claims 1-5 together (App. Br. 3--4) and each of
claims 6-8, 11, and 14 separately (App. Br. 5-8). We select claims 1, 6-8,
11, and 14 for review, with the remaining claims standing or falling with
their respective parent claim. See 37 C.F.R. § 4I.37(c)(l)(iv). Additionally,
for background purposes, Appellant's Specification states that "brake torque
can include some ... from friction braking and some ... from regenerative
braking." Spec. ,r 3. Appellant's Specification clarifies "regenerative
braking" stating, "[r]egenerative braking introduces losses associated with,
among other things, moving energy to and from a traction battery." Spec. ,r
32. Suzuki, the reference relied upon, discusses regenerative braking and
Appellant does not contend that Suzuki's regenerative braking differs from
Appellant's.
Claim 1
The Examiner relies on Paragraph 68 ( among others) of Suzuki as
disclosing the limitations of this claim. See Final Act. 4. Paragraph 68
describes certain conditions, one being a traffic light "not being a red light or
a yellow light," stating that if this is the case, then Suzuki's system
"executes regenerative braking control with a weak regenerative amount."
Emphasis added. This same paragraph also addresses a situation where, if
the traffic light is "a red light or a yellow light," then Suzuki's system
"executes regenerative braking control with a strong regenerative amount."
Emphasis added. We addresses Suzuki's teaching of "weak" and "strong"
regenerative braking below.
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Appellant contends, "Suzuki fails to teach at least the 'reducing'
feature of claim 1." App. Br. 3; see also Reply Br. 2. Appellant states that
in claim 1, "'reducing the amount' is a reducing of the permitted amount of
regenerative braking." App. Br. 4; Reply Br. 2. Appellant reiterates, "the
'amount' recited in the second line of claim 1, ... is a permitted amount."
App. Br. 4. The Examiner disagrees stating "since 'an amount' as claimed
without further clarifying, can be a small/whole/max regenerative braking
amount - it can be 'any amount."' Ans. 5.
Claim 1 recites "permitting an amount." Claim 1 does not recite
permitting a permitted amount as Appellant asserts. Further, the term
"permitted" ( or "permitted amount") is not employed in Appellant's
Specification. Thus, because we are to ascribe a meaning to a claim term as
a person of ordinary skill in the art at the time of the invention would have
understood it (see Phillips v. AWH Corp., 415 F.3d 1303, 1312-14 (Fed. Cir.
2005)), we interpret the recitation of "an amount" to be any amount, and not
just an unknown, unsupported "permitted" amount that Appellant argues.
Appellant further contends, "[ n Jo portion of Suzuki describes moving
from the strong regenerative amount to the weak regenerative amount if an
upcoming deceleration is not detected." App. Br. 4. Claim 1 is silent as to
any movement from strong to weak regenerative amounts as argued. Instead,
claim 1 simply recites two conditions predicated upon whether an upcoming
deceleration is detected or not detected. If detected, then claim 1 recites
"permitting" regenerative braking, whereas if not detected, then claim 1
recites "reducing" regenerative braking. Hence, Appellant's reading of
claim 1 as reciting "moving from the strong regenerative amount to the weak
regenerative amount" has no foundation in the actual language of claim 1.
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However, in view of at least Paragraphs 65---68 and 108 of Suzuki, we
are not persuaded that Suzuki fails to disclose moving (i.e., transitioning)
from one amount to the other based on changing conditions (i.e., from "not
being a red light or a yellow light" to "being a red light or a yellow light,"
and vice versa). 2 Accordingly, we are not persuaded the Examiner erred in
finding that claim 1 is anticipated by Suzuki, with claims 2-5 falling
therewith. Regarding claim 10, Appellant states that claim 10 "depends
from claim 1 and is patentable for at least this reason." App. Br. 7. We
likewise sustain the Examiner's rejection of claim 10 as being anticipated by
Suzuki. 3
Claim 6
Claim 6 recites the limitation "wherein the reducing comprises
preventing regenerative braking." As with claim 1, the Examiner relies on
Paragraph 68 ( among others) of Suzuki as disclosing this limitation. See
Final Act. 4. Appellant appears to be relying on a conversation held with the
Examiner on September 22, 2017, which was undertaken "to seek
clarification." App. Br. 5. Appellant states, the Examiner's "position
2 When addressing another claim, Appellant states, "[p ]aragraph [O 108]
mentions that Suzuki can transition to a weak regenerative amount." App.
Br. 7.
3 The Examiner also states, in the Examiner's Answer, that claims 1-8 and
10-15 are anticipated by Suzuki because "Suzuki already teaches" "using an
adaptive control on a vehicle." Ans. 3. The Examiner bases this alternative
rejection on MPEP § 2111.04 II entitled "CONTINGENT LIMITATIONS."
See Ans. 3--4. There is no need for us to also investigate this additional
rationale because 37 C.F.R. § 4I.50(a)(l) (2018) provides instruction that
"[t]he affirmance of the rejection of a claim on any of the grounds specified
constitutes a general affirmance of the decision of the examiner on that
claim, except as to any ground specifically reversed."
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reflects a misunderstanding" of the operation of electrified vehicles and that
the Examiner relied on a "theory of inherency." App. Br. 5. No record of
this conversation is before us for review. Regardless, Appellant states that
this conversation pertained to "regenerative braking at accelerator lift off."
App. Br. 5. However, as indicated above, claim 6 is silent as to any
regenerative braking at pedal lift off and thus, we fail to see how this
September conversation is pertinent to the language of claim 6.
Further, as indicated above, Appellant states, "[p ]aragraph [O 108]
mentions that Suzuki can transition to a weak regenerative amount." App.
Br. 7. We understand transitioning from a "strong" amount to a "weak"
amount is a lessening of the regenerative braking applied. Appellant does
not explain how this lessening of regenerative braking fails to teach the
limitation "wherein the reducing comprises preventing regenerative
braking." We sustain the Examiner's rejection of claim 6 as being
anticipated by Suzuki.
Claim 7
Appellant relies on the same arguments for claim 7 as presented above
regarding claim 6. See App. Br. 6. We rely on the same analysis. We
sustain the Examiner's rejection of claim 7 as being anticipated by Suzuki.
Claim 8
Claim 8 depends from claim 1 and recites "further comprising
increasing regenerative braking to reduce friction braking if the upcoming
deceleration is detected." In other words, claim 8 is directed to employing
increased regenerative braking in an effort to reduce friction braking. The
Examiner references Paragraph 115 ( among others) of Suzuki as disclosing
this limitation. Final Act. 6. This paragraph states that because regenerative
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braking is applied early in the deceleration process, such braking can be
increased "to the maximum extent if it is possible to stop the vehicle without
operating the friction brakes." Paragraph 113 of Suzuki similarly discloses
that vehicle speed falls due to "increasing the regenerative amount" and that
"[a]ccordingly, it is not necessary to operate friction brakes."
In view of the above, we are not persuaded Suzuki fails to teach the
limitation of "increasing regenerative braking to reduce friction braking."
We sustain the Examiner's rejection of claim 8 as being anticipated by
Suzuki.
Claim 11
Independent claim 11 states that "more regenerative braking torque"
is applied "when an upcoming deceleration is detected ... than when the
upcoming deceleration is not detected." The Examiner states, "[t]he
rationales and reference to reject claim 1 are incorporated." Final Act. 5.
Appellant again addresses a "transition" in regenerative braking stating that
in Suzuki "the transition is opposite that situation recited in the claim." App.
Br. 7. However, as above, claim 11 is silent as to any "transition" from one
amount to another; instead, claim 11 is directed to a comparison of two
braking amounts, not a transition between the two. 4 For the same reasons
previously discussed regarding claim 1, we likewise are not persuaded the
Examiner erred in rejecting claim 11. We affirm the Examiner's rejection of
claim 11 as being anticipated by Suzuki. Additionally, Appellant states that
claims 12, 13, and 15 "depend[] from claim 11 and [are] patentable for at
4 Both the Examiner and Appellant reference Suzuki Paragraph 108
regarding a teaching of transitioning. See Ans. 6; App. Br. 7.
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least this reason." App. Br. 7, 8. We likewise sustain the Examiner's
rejection of claims 12, 13, and 15 as being anticipated by Suzuki.
Claim 14
Claim 14 depends from claim 11 and additionally recites, "wherein
the regenerative braking torque comprises a lift pedal regenerative braking
torque." Appellant provides a definition of "lift pedal regenerative braking
torque" (App. Br. 8) and acknowledges that regenerative braking "when a
brake pedal and an accelerator pedal are not depressed" is already known.
Spec. ,r 32; see also App. Br. 5 ("Many types of electrified vehicles apply
regenerative braking at accelerator lift off when the brake pedal is not
depressed."). However, Appellant contends, "[t]he rejection of claim 14
fails to make a prima facie showing of inherency" and "[t]he rejection
provides no basis in fact or technical reasoning that Suzuki inherently
teaches" this limitation. 5 App. Br. 8. Such arguments are not persuasive of
anticipation in view of Appellant's acknowledgement that this recited
limitation was already known to those skilled in the art. We sustain the
Examiner's rejection of claim 14.
The rejection of claims 9 and 16--20
as unpatentable over Suzuki
Claim 9 is directed to the limitation of applying regenerative braking
"when a brake pedal is not depressed." Appellant contends, "there is no
prima facie case and the rejection should be reversed." Appellant also states
5 The "inherency" issue arises from the Examiner's statement that "it is
inherent for a vehicle to lift an acceleration pedal ( or a representation of that
step) to using a braking pedal." Final Act. 6. Appellant's subsequent
interpretation and application of this "inherency" statement is not wholly
consistent with what the Examiner actually found.
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Application 14/800,061
that claim 9 is patentable for at least the reasons set forth with respect to
claim 1. Even presuming these are sufficient arguments (cf In re Lovin, 652
F.3d 1349, 1357 (Fed. Cir. 2011)), Appellant has already acknowledged that
this limitation (i.e., "regenerative braking when a brake pedal is not
depressed") was known. See Spec. ,r 32; App. Br. 5. In other words,
Appellant does not explain how the Examiner erred in stating that it would
have been obvious to combine Suzuki with well-known knowledge "because
applying regenerative braking is already a capability of said vehicle." Final
Act. 7. We sustain the Examiner's rejection of claim 9 as being
unpatentable over Suzuki.
Claim 16 recites language directed to regenerative braking being
"more" when "an accelerator pedal of the electrified vehicle is not depressed
than when ... the accelerator pedal [is] depressed." The Examiner states
that regenerative braking when "an accelerator pedal is not depressed" "is
inherent with a vehicle." Final Act. 7. Appellant contends, "the rejection
includes no ... support" and that "it is not 'inherent with a vehicle' to apply
more regenerative braking torque when a deceleration is detected and an
accelerator pedal is not depressed." App. Br. 9. However, Appellant does
not address Spec. ,r 32 which clearly states, "[ s Jome electrified vehicles
implement relative aggressive regenerative braking when a brake pedal and
an accelerator pedal are not depressed." Emphasis added. Whether or not
this known application of aggressive regenerative braking rises to the level
of "inherency," there is no dispute that such aggressive application was
known to those skilled in the art. Accordingly, Appellant does not explain
how this addition of a known operation shows error in the Examiner's
determination that the subject matter of claim 16 is obvious. We sustain the
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Examiner's rejection of claim 16 as being obvious over Suzuki in view of
what a skilled person, according to Appellant, is understood to already
know.
Regarding claim 1 7, Appellant contends that this "claim depends from
claim 15 and is patentable for at least this reason." App. Br. 9. We are not
persuaded of Examiner error by this assertion, and accordingly, we sustain
the Examiner's rejection of claim 17 as being obvious over Suzuki.
Regarding claim 18, Appellant recites the "controller" limitation and
simply states, "Suzuki, as modified, fails to teach or suggest at least this
feature of claim 18." App. Br. 9. Appellant follows this assertion with a
reference to "Suzuki having 'no need to brake."' App. Br. 9. This argument
is not understood since Suzuki clearly indicates a need to brake when there
is an upcoming red or yellow light. See e.g., Suzuki ,r 68. In summation,
Appellant's argument regarding claim 18 is not persuasive of Examiner error
in rejecting this claim as being obvious over Suzuki.
Regarding claims 19 and 20, Appellant contends that these "claim[ s]
depend[] from claim 18 and [are] patentable for at least this reason." App.
Br. 9, 10. We are not persuaded of Examiner error by these assertions, and
accordingly, we sustain the Examiner's rejection of claims 19 and 20 as
being obvious over Suzuki.
SUMMATION
In the above analysis, we relied on Appellant's Admitted Prior Art, as
evidenced by the first sentence in Paragraph 32 of Appellant's Specification.
This reliance is to what was known in the art at the time of the invention
and, although the Examiner also relied on knowledge in the art, the
Examiner did not expressly reference this Paragraph 32. Accordingly, we
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affirm the Examiner's rejection of claims 1-20 in view of Suzuki, and we
also designate this affirmance as a New Ground of Rejection because our
analysis may involve reasoning that differs from, or is supplemental to, the
Examiner's reasoning. Thus, we designate our affirmance as a new ground
of rejection under 37 C.F.R. § 4I.50(b) so as to provide Appellant with a
"fair opportunity to react to the thrust of the rejection." In re Kronig, 539
F.2d 1300, 1302---03 (CCPA 1976).
DECISION
The Examiner's rejections of claims 1-20 in view of Suzuki are
affirmed and designated as NEW GROUNDS OF REJECTION.
FINALITY OF DECISION
This decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 4I.50(b). Section 4I.50(b) provides "[a] new ground of rejection pursuant
to this paragraph shall not be considered final for judicial review." Section
4I.50(b) also provides:
When the Board enters such a non-final decision, the Appellant,
within two months from the date of the decision, must exercise
one of the following two options with respect to the new ground
of rejection to avoid termination of the appeal as to the rejected
claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating
to the claims so rejected, or both, and have the matter
reconsidered by the examiner, in which event the prosecution
will be remanded to the examiner. The new ground of rejection
is binding upon the examiner unless an amendment or new
Evidence not previously of Record is made which, in the
opinion of the examiner, overcomes the new ground of rejection
designated in the decision. Should the examiner reject the
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claims, appellant may again appeal to the Board pursuant to this
subpart.
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record. The
request for rehearing must address any new ground of rejection
and state with particularity the points believed to have been
misapprehended or overlooked in entering the new ground of
rejection and also state all other grounds upon which rehearing
is sought.
Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure§ 1214.01.
No time period for taking any subsequent action in connection with
this appeal may be extended 37 C.F.R. § 1.136(a)(l). See 37 C.F.R.
§ 1.136(a)(l )(iv)).
AFFIRMED; 37 C.F.R. § 4I.50(b)
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