Ex Parte Frampton et alDownload PDFPatent Trial and Appeal BoardDec 19, 201613289131 (P.T.A.B. Dec. 19, 2016) Copy Citation 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. 13/289,131 11/04/2011 Isaac S. Frampton 3357.002US1 8509 21186 7590 12/21/2016 SCHWEGMAN LUNDBERG & WOESSNER, P.A. P.O. BOX 2938 MINNEAPOLIS, MN 55402 EXAMINER SAAVEDRA, EMILIO J ART UNIT PAPER NUMBER 2127 NOTIFICATION DATE DELIVERY MODE 12/21/2016 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): uspto@slwip.com SLW @blackhillsip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ISAAC S. FRAMPTON, KENNETH R. BORNEMANN, and HARRISON C. CHIU Appeal 2016-002394 Application 13/289,1311 Technology Center 2100 Before LARRY J. HUME, LINZY T. McCARTNEY, and ALEX S. YAP, Administrative Patent Judges. HUME, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. § 134(a) of the Examiner's Final Rejection of claims 1, 3, 4, and 7—37, which constitute all the claims pending in this application. Appellants have canceled claims 2, 5, and 6. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. 1 According to Appellants, the real party in interest is Kohler Co. App. Br. 2. Appeal 2016-002394 Application 13/289,131 STATEMENT OF THE CASE2 The Invention Appellants' disclosed and claimed inventions relate "to a system and method for adding and shedding loads, and more particularly to a system and method for adding and shedding loads using load levels to determine timing." Spec. 11. Exemplary Claims Claims 1, 22, 28, 30, 34, 35, and 37, reproduced below, are representative of the subject matter on appeal (emphases added to contested limitations): 1. A method of adding and shedding loads that are connected to a generator, the method comprising: determining whether a plurality of loads is being supplied with power by the generator; determining the load that the generator is supplying to the plurality of loads; determining whether to change a number of the loads in the plurality of loads based on the amount of load that is being supplied by the generator; and determining an amount of time in which to change the number of loads in the plurality of loads relative to the amount of load that is being supplied by the generator, wherein the amount of time to change the number of loads varies relative to an available load capacity for the generator for all possible loads within a particular load range of loads. 2 Our decision relies upon Appellants' Appeal Brief ("App. Br.," filed June 15, 2015); Reply Brief ("Reply Br.," filed Dec. 22, 2015); Examiner's Answer ("Ans.," mailed Nov. 3, 2015); Final Office Action ("Final Act.," mailed Dec. 26, 2014); and the original Specification ("Spec.," filed Nov. 4, 2011). 2 Appeal 2016-002394 Application 13/289,131 22. The method of claim 18, wherein the amount of time to increase the number of loads will increase as the available load capacity decreases. 28. The method of claim 1, wherein determining an amount of time in which to change the number of loads in the plurality of loads based on the amount of load that is being supplied by the generator includes decreasing the number of loads based on generator operating frequency. 30. A method of adding and shedding loads that are connected to a generator, the method comprising: determining whether a plurality of loads is being supplied with power by the generator; determining the load that the generator is supplying to the plurality of loads; determining whether to change a number of the loads in the plurality of loads based on the amount of load is being supplied by the generator; changing the number of loads in the plurality of loads; and determining an amount of time in which to further change the number of loads in the plurality of loads, wherein the amount of time is determined by whether the number of loads increases or decreases during the previous change of the number of loads. 34. The method of claim 30, wherein determining an amount of time in which to further change the number of loads in the plurality of loads includes increasing the amount of time to increase the number of loads in the plurality of loads when the previous change of the number of loads decreased the number of loads. 35. A method of adding and shedding loads comprising: determining a power parameter related to power supplied by a generator to at least one load; 3 Appeal 2016-002394 Application 13/289,131 determining whether to change a number of loads in the at least one load supplied power by the generator based on the power parameter; determining an amount of time in which to change the number of loads relative to the power parameter, wherein the amount of time is a first time amount when the power parameter is greater than a threshold value, and where the amount of time varies relative to the power parameter when the power parameter is less than a threshold value. 37. The method of claim 35, wherein the amount of time varies inversely proportionally to the power parameter over a power parameter range when the power parameter is less than the threshold value. Prior Art The Examiner relies upon the following prior art as evidence in rejecting the claims on appeal: Sodemann et al. US 2005/0216131 A1 Sept. 29, 2005 ("Sodemann") Vos et al. US 2006/0112688 Al June 1, 2006 ("Vos") Tsukida et al. US 2007/0222294 Al Sept. 27, 2007 ("Tsukida") Rejections on Appeal Rl. Claims 1,3, 11, 13, 18—27, and 30-37 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Sodemann. Final Act. 3. R2. Claims 4, 12, 28, and 29 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Sodemann and Tsukida. Final Act. 12. 4 Appeal 2016-002394 Application 13/289,131 R3. Claims 7—10 and 14—17 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Sodemann and Vos. Final Act. 15. CLAIM GROUPING Based on Appellants' arguments (App. Br. 10-18), we decide the appeal of anticipation Rejection R1 of claims 1,3, 11, 13, 18—21, and 23—27 on the basis of representative claim 1; we decide the appeal of anticipation Rejection R1 of claim 30-33 on the basis of representative claim 30; and we decide the appeal of anticipation Rejection R1 of claim 35 and 36 on the basis of representative claim 35. We decide the appeal of anticipation Rejection R1 of separately argued claims 22, 34, and 37, infra. We decide the appeal of obviousness Rejection R2 of claims 4, 12, 28, and 29 on the basis of representative claim 28. Remaining claims 7—10 and 14—17 in rejection R3, which are not argued separately, stand or fall with independent claim 1 from which they depend.3 ISSUES AND ANALYSIS In reaching this decision, we consider all evidence presented and all arguments actually made by Appellants. We do not consider arguments that Appellants could have made but chose not to make in the Briefs, and we deem any such arguments waived. 37 C.F.R. § 41.37(c)(l)(iv). 3 "Notwithstanding any other provision of this paragraph, the failure of appellant to separately argue claims which appellant has grouped together shall constitute a waiver of any argument that the Board must consider the patentability of any grouped claim separately." 37 C.F.R. § 41.37(c)(l)(iv) 5 Appeal 2016-002394 Application 13/289,131 We agree with particular arguments advanced by Appellants with respect to dependent claim 34, as discussed below. However, we disagree with Appellants' arguments with respect to claims 1,3,4, 7—33, and 35—37, and we incorporate herein and adopt as our own: (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken, and (2) the reasons and rebuttals set forth in the Examiner's Answer in response to Appellants' arguments. We incorporate such findings, reasons, and rebuttals herein by reference unless otherwise noted. We highlight and address specific findings and arguments regarding claims 1, 22, 28, 30, 34, 35, and 37 for emphases as follows. 1. $ 102(b) Rejection R1 of Claims E 3, If 13, 18—21, and 23—27 Issue 1 Appellants argue (App. Br. 10—11; Reply Br. 2—4, 6—9) the Examiner's Rejection R1 of claim 1 under 35 U.S.C. § 102(b) as being anticipated by Sodemann is in error. These contentions present us with the following issue: Did the Examiner err in finding the cited prior art discloses "[a] method of adding and shedding loads that are connected to a generator" that includes, inter alia, the step of: determining an amount of time in which to change the number of loads in the plurality of loads relative to the amount of load that is being supplied by the generator, wherein the amount of time to change the number of loads varies relative to an available load capacity for the generator for all possible loads within a particular load range of loads, 6 Appeal 2016-002394 Application 13/289,131 as recited in claim 1? Analysis Appellants contend "Sodemann predominately describes adding and shedding loads according to a preset time interval. . . [and] when 'a large current swing in demand' is identified, the system skips the preset time intervals and instead sheds the loads quickly 'to prevent the generator 112 from overloading.'" App. Br. 10. "After this quick load shed and system stabilization, the system returns to its use of preset time intervals." Id. Appellants further contend, Sodemann does not teach or suggest the contested limitation of claim 1 for two reasons. First, Appellants allege Sodemann does not teach or suggest the "determining" step of claim 1 because Sodemann merely teaches two distinct and predetermined operating conditions dependent on a threshold current swing value: when below the threshold, the system uses a preset time interval; and when above the threshold, the system ignores the preset time intervals and instead sheds load as quickly as possible. In particular, Appellants] note that there is no indication that any calculation or determination of a particular amount of time is actually performed, regardless of whether or not the system operates below or above the threshold. Sodemann either uses a present time interval or sheds quickly. App. Br. 11 (emphasis added). Second, with respect to the "wherein" clause of claim 1, Appellants contend Sodemann clearly describes a system akin to providing a threshold below which the system uses a preset time interval and above which the system ignores the preset time intervals and instead sheds load quickly. A threshold value does not and 7 Appeal 2016-002394 Application 13/289,131 cannot, by definition, encompass a particular load range of loads. Id. Our reviewing court guides, "[i]n the patentability context, claims are to be given their broadest reasonable interpretations . . . limitations are not to be read into the claims from the specification." In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993) (citations omitted). Any special meaning assigned to a term "must be sufficiently clear in the specification that any departure from common usage would be so understood by a person of experience in the field of the invention." Multiform Desiccants, Inc. v. Medzam, Ltd., 133 F.3d 1473, 1477 (Fed. Cir. 1998); see also Helmsderfer v. Bobrick Washroom Equip., Inc., 527 F.3d 1379, 1381 (Fed. Cir. 2008) ("A patentee may act as its own lexicographer and assign to a term a unique definition that is different from its ordinary and customary meaning; however, a patentee must clearly express that intent in the written description."). Absent an express intent to impart a novel meaning to a claim term, the words take on the ordinary and customary meanings attributed to them by those of ordinary skill in the art. Brookhill-Wilk 1, LLC v. Intuitive Surgical, Inc., 334 F.3d 1294, 1298 (Fed. Cir. 2003) (citation omitted). In response to Appellants' first contention, the Examiner finds: [T]he real issue at hand is that the claim language, especially with regards to the independent claims, does not adequately overcome the cited prior art since the "amount of time" is not clearly defined in the claim. Nor is the actual "determining" of the amount of time actually provided in the claim. The claim only casually associates the "amount of time" with a capacity, a number of loads, or a power parameter, but does not 8 Appeal 2016-002394 Application 13/289,131 specifically provide the relationship between the "amount of time " and the load capacity for the generator, number of loads or power parameter. Ans. 2. The Examiner finds, and we agree, under the broadest reasonable interpretation, "Sodemann does teach determin[ing] 'an amount of time' in which to shed loads . . . [because] 'determining' is a word that can encompass a determination by either choosing a value or by calculating a value . . . [and] the claim does not specify the manner of 'determining'. . . [such that] any form of determining . . . meet[s] the claim language." Ans. 3. We note Appellants have not cited to a definition of "determining an amount of time" in the Specification that would preclude the Examiner's broader reading. Id. With respect to Appellants' second contention concerning the "wherein" clause and Sodemann's asserted reliance upon a threshold, and the argument that a threshold value cannot encompass a particular range of loads (App. Br. 11), the Examiner finds, in Sodemann, when the range of connected loads draws an amount of current that is in danger of surpassing the acceptable available load generator capacity, then shedding is performed. Ans. 5. Further, the Examiner finds, and we agree, "paragraph 32 of Sodemann does teach that an amount of time in which to shed a load (i.e. [,] change the number of loads) in a plurality of loads (several connected . . . loads) is determined relative to the amount of load that is being supplied by the generator (a load is shed relative to a number of loads being supplied by the generator)." Id. Moreover, "[Paragraph 32 should not be read in a 'bubble' and the aggregate teachings of Sodemann must be considered. For 9 Appeal 2016-002394 Application 13/289,131 example, even if paragraph 32 does not explicitly mention capacity, other paragraphs such as 3, 5, 23—24 etc., serve to show that the capacity is being used by the act of considering the current of the system." Id.A Therefore, based upon the findings above, on this record, we are not persuaded of error in the Examiner's reliance on the disclosure of the cited prior art to disclose the disputed limitation of claim 1, nor do we find error in the Examiner's resulting finding of anticipation. Therefore, we sustain the Examiner's anticipation rejection of independent claim 1, and grouped claims 3, 11, 13, 1—21, and 23—27, which fall therewith. See Claim Grouping, supra. 2. $ 102(b) Rejection R1 of Claim 22 Issue 2 Appellants argue (App. Br. 11—12; Reply Br. 9) the Examiner's Rejection R1 of claim 22 under 35 U.S.C. § 102(b) as being anticipated by Sodemann is in error. These contentions present us with the following issue: Did the Examiner err in finding the cited prior art discloses "[t]he method of claim 18," wherein inter alia, "the amount of time to increase the 4 For example, "[t]he load management system includes at least one current transformer configured to monitor the current input from a standby generator" (Sodemann | 5); "load management system 100 includes an input terminal block 204 to receive a plurality of incoming lines from the generator 112. A controller 208 monitors the incoming lines and manages the total current drawn or the generator loaded at or below a preset maximum amount" (Sodemann 1230); and "[t]he load management system 100 then monitors the incoming lines based on how the power-related switches 216 and the fuel type switches 220 are set." Sodemann 124. 10 Appeal 2016-002394 Application 13/289,131 number of loads will increase as the available load capacity decreases," as recited in claim 22? Analysis Appellants contend: [Paragraph [0032] of Sodemann only describes breaking from the preset interval of 5 seconds "when there is a large swing in current demand." In addition, the described preset interval only applies to decreasing loads and not increasing loads throughout the specification of Sodemann. Therefore, Sodemann does not describe "wherein the amount of time to increase the number of loads will increase as the available load capacity decreases" as recited in claim 22. App. Br. 12. In response, the Examiner finds, and we agree under the broadest reasonable interpretation, Sodemann discloses priority loads are added first . . . [which] will inherently decrease the amount of available generator capacity. After the priority loads are added and generator capacity is decreased, then a time delay is applied for a subsequent load, thus the amount of time has been increased after a decrease in generator capacity. Ans. 6. Therefore, based upon the findings above, on this record, we are not persuaded of error in the Examiner's reliance on the disclosure of the cited prior art to disclose the disputed limitation of claim 22, nor do we find error in the Examiner's resulting finding of anticipation. Therefore, we sustain the Examiner's anticipation rejection of dependent claim 22. 11 Appeal 2016-002394 Application 13/289,131 3. $ 102(b) Rejection R1 of Claims 30-33 Issue 3 Appellants argue (App. Br. 12) the Examiner's Rejection R1 of claim 30 under 35 U.S.C. § 102(b) as being anticipated by Sodemann is in error. These contentions present us with the following issue: Did the Examiner err in finding the cited prior art discloses "[a] method of adding and shedding loads that are connected to a generator," that includes, inter alia, the step of: determining an amount of time in which to further change the number of loads in the plurality of loads, wherein the amount of time is determined by whether the number of loads increases or decreases during the previous change of the number of loads, as recited in claim 30? Analysis Appellants contend: The Office Action cites no section of Sodemann, and Appellant can find none, which teaches or suggests determining an amount of time "wherein the amount of time is determined by whether the number of loads increases or decreases during the previous change of the number of loads," as recited in claim 30. Indeed, Sodemann makes no mention of determining any amount of time, or taking any action, based on previous changes in the number of loads. App. Br. 12. Appellants then reiterate their arguments presented with respect to the rejection of claim 1, i.e., that Sodemann only discloses "adding and shedding loads according to preset time interval... or shedding loads quickly when 'a large current swing in demand' is identified." Id. 12 Appeal 2016-002394 Application 13/289,131 The Examiner cites Sodemann paragraph 32 as disclosing the contested limitations. Final Act. 8. In response to Appellants'arguments, the Examiner notes once again that the issue of the form of "determining" in claim 30 is not claimed in a manner that explicitly provides the relationship between the "number of loads" and the "amount of time." The claim does not specifically state that the "determining" of the amount of time is directly calculated using the number of the loads. Since this vital relationship is missing from the claim, then the "determining" can be interpreted, and has been interpreted by the Examiner, as meaning that the "determining of an amount of time" that is to be used, is a result of circumstances from an increase or decrease in the number of loads. Ans. 6. "As loads are added or shed, the amount of time can be different, see Para 32, Sodemann." Final Act. 8 (emphasis omitted). Accordingly, on this record, and as a matter of claim construction, we agree with the Examiner's findings such that we are not persuaded of error in the Examiner's reliance on the disclosure of the cited prior art to disclose the disputed limitation of claim 30, nor do we find error in the Examiner's resulting finding of anticipation. Therefore, we sustain the Examiner's anticipation rejection of independent claim 30, and grouped claims 31—33, which fall therewith. See Claim Grouping, supra. 4. $ 102(b) Rejection R1 of Claim 34 Issue 4 Appellants argue (App. Br. 13) the Examiner's Rejection R1 of claim 34 under 35 U.S.C. § 102(b) as being anticipated by Sodemann is in error. These contentions present us with the following issue: 13 Appeal 2016-002394 Application 13/289,131 Did the Examiner err in finding the cited prior art discloses "[t]he method of claim 30," wherein inter alia, "determining an amount of time in which to further change the number of loads in the plurality of loads includes increasing the amount of time to increase the number of loads in the plurality of loads when the previous change of the number of loads decreased the number of loads," as recited in claim 34? Analysis Appellants contend "Sodemann makes no mention of determining any amount of time, or taking any action, based on previous changes in the number of loads, and more specifically, increasing the time to increase loads when the previous change in loads decreases the loads," and therefore does not disclose the contested limitation of claim 34. App. Br. 13. In the Final Rejection, the Examiner finds Sodemann paragraph 32 discloses the time to add loads or the time to shed loads based upon a previous change of the number of loads, i.e., "[a]s loads are added or shed, the amount of time can be different where the adding or shedding is quicker or slower with respect to a previous load operation." Final Act. 10 (citation omitted). We disagree with the Examiner's findings regarding the specifically contested limitation of claim 34 and Sodemann's teachings related thereto. Moreover, in the Answer, the Examiner does not respond to Appellants' arguments regarding claim 34, as quoted above. Therefore, based upon the findings above, on this record, we are persuaded of at least one error in the Examiner's reliance on the disclosure of the cited prior art to disclose the disputed limitation of claim 34, and with 14 Appeal 2016-002394 Application 13/289,131 the Examiner's resulting finding of anticipation. Therefore, we cannot sustain the Examiner's anticipation rejection of dependent claim 34. 5. $ 102(b) Rejection R1 of Claims 35 and 36 Issue 5 Appellants argue (App. Br. 13—15; Reply Br. 3, 5) the Examiner's Rejection R1 of claim 35 under 35 U.S.C. § 102(b) as being anticipated by Sodemann is in error. These contentions present us with the following issue Did the Examiner err in finding the cited prior art discloses "[a] method of adding and shedding loads," that includes, inter alia, the step of: determining an amount of time in which to change the number of loads relative to the power parameter, wherein the amount of time is a first time amount when the power parameter is greater than a threshold value, and where the amount of time varies relative to the power parameter when the power parameter is less than a threshold value, as recited in claim 35? Analysis Appellants contend: [A]s discussed with claim 1, Sodemann merely teaches two distinct and predetermined operating conditions dependent on a threshold current swing value: when below the threshold, the system uses a preset time interval; and when above the threshold, the system ignores the preset time intervals and instead sheds load as quickly as possible. There is no indication that any calculation or determination of a particular amount of time is actually performed—Sodemann either uses a present time interval or sheds quickly. App. Br. 14. Appellants further argue, "Sodemann merely teaches shedding loads quickly, without any description of varying said time relative to the 15 Appeal 2016-002394 Application 13/289,131 power parameter . . . [and t]he Office Action's conclusion . . . appears to imply inherency where none exists." Id. In response the Examiner finds, "the claim language is even broader than claim 1, [because] the more generic 'power parameter' is used instead of a generator capacity." Ans. 8. The Examiner further finds "the current being monitored, and considered by Sodemann, is in fact a 'power parameter' . . . [because] power capacity is directly related to current." Id. (citing Sodemann || 3, 5, and 22—24). Because "the determined amount of time delay being applied by Sodemann depends on [whether] the current swing varies in such a manner that generator load capacity decreases faster than expected, then the amount of time that is determined to be used does vary according to the 'power parameter' (i.e. current) being monitored." Therefore, based upon the findings above, on this record, we are not persuaded of error in the Examiner's reliance on the disclosure of the cited prior art to disclose the disputed limitation of claim 35, nor do we find error in the Examiner's resulting finding of anticipation. Therefore, we sustain the Examiner's anticipation rejection of independent claim 35, and grouped claim 36, which falls therewith. See Claim Grouping, supra. 6. $ 102(b) Rejection R1 of Claims 37 Issue 6 Appellants argue (App. Br. 15) the Examiner's Rejection R1 of claim 37 under 35 U.S.C. § 102(b) as being anticipated by Sodemann is in error. These contentions present us with the following issue: Did the Examiner err in finding the cited prior art discloses "[t]he method of claim 35," wherein, inter alia, "the amount of time varies 16 Appeal 2016-002394 Application 13/289,131 inversely proportionally to the power parameter over a power parameter range when the power parameter is less than the threshold value," as recited in claim 37? Analysis Appellants contend: Sodemann describes that the loads are shed at a longer preset time interval no matter what the load is below the threshold. In contrast, claim 3 7 recites that the load is shed more slowly the further the load is from the threshold and Sodemann instead describes a FIXED preset time interval. Therefore, Sodemann does not describe [the contested limitation of claim 37]. App. Br. 15 (emphasis added). We first note, as pointed out by the Examiner (Ans. 8), Appellants' argument is not commensurate with the scope of the claim, because claim 37 recites, in pertinent part, "the amount of time varies inversely proportionally to the power parameter over a power parameter range when the power parameter is less than the threshold value," and does not recite, as argued by Appellants, quoted above, "the load is shed more slowly the further the load is from the threshold." The Examiner finds, and we agree, "[t]he claim does not specify what the 'range' encompasses, and thus the range can be as small or large as possible" and, because "Sodemann teaches that an amount of time decreases (i.e.[,] becomes quicker) as the current swing being monitored increases," Sodemann discloses the inverse relationship between the amount of time and current, i.e., "power parameter.'' Id. 17 Appeal 2016-002394 Application 13/289,131 Therefore, based upon the findings above, on this record, we are not persuaded of error in the Examiner's reliance on the disclosure of the cited prior art to disclose the disputed limitation of claim 37, nor do we find error in the Examiner's resulting finding of anticipation. Therefore, we sustain the Examiner's anticipation rejection of independent claim 37. 7. $ 103(a) Rejection R2 of Claims 4, 12, 28, and 29 Issue 7 Appellants argue (App. Br. 18) the Examiner's Rejection R2 of claim 28 under 35 U.S.C. § 103(a) as being obvious over the combination of Sodemann and Tsukida is in error. These contentions present us with the following issue: Did the Examiner err in finding the cited prior art discloses "[t]he method of claim 1," wherein, inter alia, "determining an amount of time in which to change the number of loads in the plurality of loads based on the amount of load that is being supplied by the generator includes decreasing the number of loads based on generator operating frequency," as recited in claim 28? Analysis Appellants contend "Sodemann does not describe generator operating frequency, and Tsukida only describes shedding loads based on generator operating frequency with no description as to determining the amount of time to add or shed loads based on generator operating frequency." App. Br. 18. 18 Appeal 2016-002394 Application 13/289,131 Appellants argue the references separately, and we are not persuaded by such arguments. We are not persuaded because the Examiner rejects the claims as obvious over the combined teachings of Sodemann and Tsukida, and the test for obviousness is not what the references show individually but what the combined teachings would have suggested to one of ordinary skill in the art. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). In response to Appellants' argument, the Examiner points out "Tsukida is not being relied upon to teach [determining an amount of time to add or shed loads]." Ans. 9. Instead, "Tsudika[sic] is being relied upon to teach that generator operating frequency is a consideration when deciding to add or shed loads . . . [and] Sodemann teaches that different amounts of times for adding or shedding loads depending on generator conditions can be varied." Id. Therefore, based upon the findings above, on this record, we are not persuaded of error in the Examiner's reliance on the teachings and suggestions of the cited prior art combination to teach or suggest the disputed limitation of claim 28, nor do we find error in the Examiner's resulting legal conclusion of obviousness. Therefore, we sustain the Examiner's obviousness rejection of dependent claim 28, and grouped claims 4, 12, and 29, which fall therewith. See Claim Grouping, supra. REPLY BRIEF To the extent Appellants may advance new arguments in the Reply Brief (Reply Br. 2—12) not in response to a shift in the Examiner's position in the Answer, we note arguments raised in a Reply Brief that were not raised in the Appeal Brief or are not responsive to arguments raised in the 19 Appeal 2016-002394 Application 13/289,131 Examiner’s Answer will not be considered except for good cause (see 37 C.F.R. § 41.41(b)(2)), which Appellants have not shown. CONCLUSIONS (1) The Examiner did not err with respect to anticipation Rejection R1 of claims 1, 3, 11, 13, 18—27, 30-33, and 35—37 under 35 U.S.C. § 102(b) over the cited prior art of record, and we sustain the rejection. (2) The Examiner erred with respect to anticipation Rejection R1 of claim 34 under 35 U.S.C. § 102(b) over the cited prior art of record, and we do not sustain the rejection. (3) The Examiner did not err with respect to obviousness Rejections R2 and R3 of claims 4, 7—10, 12, 14—17, 28, and 29 under 35 U.S.C. § 103(a) over the cited prior art combinations of record, and we sustain the rejections. DECISION We affirm the Examiner's decision rejecting claims 1,3,4, 7—33, and 35—37, and we reverse the Examiner's decision rejecting claim 34. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED-IN-PART 20 Copy with citationCopy as parenthetical citation