Ex Parte Gibson et al

Patent Trial and Appeal Board

Jun 27, 2016

12107857 (P.T.A.B. Jun. 27, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/107,857 04/23/2008 Thomas L. Gibson
104102 7590 06/27/2016
BrooksGroup
48685 Hayes
Shelby Township, MI 48315
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.
P001336-R&D-JMC 1484
EXAMINER
HERNANDEZ, MANUEL J
ART UNIT PAPER NUMBER
2859
MAILDATE DELIVERY MODE
06/27/2016 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 PATENT TRIAL AND APPEAL BOARD
Ex parte THOMAS L. GIBSON, DAVID B. OUWERKERK,
NELSON A. KELLY, and IAN J. SUTHERLAND
Appeal2014-009399
Application 12/107,857
Technology Center 2800
Before DEBRA K. STEPHENS, JASON V. MORGAN, and
DAVID J. CUTITTA II, Administrative Patent Judges.
STEPHENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a Final Rejection of
claims 3-8, 11-33, 35, and 37-39. Claims 1, 2, 9, 10, 34, and 36 have been
cancelled. We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART.
Appeal2014-009399
Application 12/107,857
STATEMENT OF THE INVENTION
According to Appellants, the claims are directed to a solar battery
charging system and optional solar hydrogen production system for vehicle
propulsion (Abstract). Claims 7 and 33, reproduced below, are exemplary:
7. A product comprising:
a vehicle battery being one of a lithium-ion, nickel-metal
hydride, or lead acid type battery, said vehicle battery having a
set of terminals, a charge capacity and capable of being charged
with solar energy;
a plurality of photovoltaic cells being capable of
generating voltage and current, arranged in series, parallel, or
series and parallel according to the voltage and power of each
photovoltaic cell, forming an array capable of charging the
battery, wherein a voltage and current drawn from the array are
controlled based on an amount of charge stored in the battery;
and
an electrical connection linking the array to the battery;
an electrolysis unit powered by the array, wherein the
electrolysis unit is capable of generating hydrogen;
a hydrogen storage tank for storing the hydrogen
generated by the electrolysis unit; and
a control system for selectively directing power from the
array to the vehicle battery, the electrolysis unit, or to both at the
same time.
33. A product comprising:
an array of photovoltaic cells capable of charging a battery
and arranged in series, parallel, or series and parallel according
to a voltage and power of each photovoltaic cell, wherein the
array produces a maximum power point voltage that
substantially equals a set point voltage of the battery;
a first battery being one of a lithium-ion, nickel-metal
hydride, or lead acid type battery, said first battery remaining in
a substantially stationary position capable of receiving a charge
from the array;
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Application 12/107,857
a second battery being one of a lithium-ion, nickel-metal
hydride, or lead acid type battery, said second battery mounted
in a vehicle capable of receiving a charge from the first battery;
an electrolyzer for producing hydrogen, wherein the
hydrogen is stored in tanks adjacent to the electrolyzer or on the
vehicle; and
a control system for selectively directing energy, which is
generated by the array, to the first battery, the second battery, the
electrolyzer, or an electric grid.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Gruber
Maruyama
Kono ya
Bird
Chaney
Parmley
us 4, 175,249
us 4,714,868
us 5,614,808
us 5,917 ,304
US 2005/0274556 Al
US 2006/0192435 Al
REJECTIONS
Nov. 20, 1979
Dec. 22, 1987
Mar. 25, 1997
June 29, 1999
Dec. 15, 2005
Aug. 31, 2006
Claims 7, 14, and 35 stand rejected under 35 U.S.C. §112, second
paragraph, as being indefinite for failing to particularly point out and
distinctly claim the subject matter which the inventor or a joint inventor
regards as the invention (Final Act. 2).
Claims 6, 7, 11-16, 22, 28-31, 33, and 37-39 stand rejected under 35
U.S.C. §103(a) as being unpatentable over Parmley, Gruber, and Bird (Final
Act. 3-14).
Claims 3-5, 18-21, 24--27, and 32 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Parmley, Gruber, Bird, and Maruyama
(Final Act. 14--17).
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Application 12/107,857
Claims 8 and 23 stand rejected under 35 U.S.C. §103(a) as being
unpatentable over Parmley, Gruber, Bird, and Chaney (Final Act. 17).
Claim 17 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Parmley, Gruber, Bird, and Konoya (Final Act. 18).
We have only considered those arguments that Appellants actually
raised in the Briefs. Arguments Appellants could have made but chose not
to make in the Briefs have not been considered and are deemed to be
waived. See 37 C.F.R. § 41.37(c)(l)(iv) (2013).
ISSUE 1
35 U.S. C. § 112, second paragraph: Claims 7, 14, and 35
Appellants present no arguments pertaining to the Examiner's
limitations of the claimed subject matter rejection of claims 7, 14, and 35
(App. Br. 1-31; Reply Br. 1-10). Accordingly, we summarily sustain these
rejections. See In re w·aus, 354 F.Jd 1362, 1368 (Fed.Cir.2004).
ISSUE 2
35 U.S.C. § 103(a): Claims 6, 7, 11-16, 22, 28-31, 37, and 38
Appellants assert their invention is not obvious over Parmley, Gruber,
and Bird (App. Br. 10-22). The issue presented by the arguments is:
Issue 2: Has the Examiner erred in finding the combination of
Parmley, Gruber, and Bird teaches or suggests
a plurality of photovoltaic cells being capable of generating
voltage and current, arranged in series, parallel, or series and
parallel according to the voltage and power of each
photovoltaic cell, forming an array capable of charging the
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Application 12/107,857
battery, wherein a voltage and current drawn from the array are
controlled based on an amount of charge stored in the battery,
as recited in claim 7?
ANALYSIS
Appellants contend the combination of Parmley, Gruber, and Bird
does not disclose a photovoltaic array "wherein a voltage and current drawn
from the array are controlled based on the amount of charge stored in the
battery" (App. Br. 10-11). Specifically, Appellants argue Parmley's DC
charger 152 does not control the charge of the battery of vehicle 170 (App.
Br. 11) and there is "no indication in Parmley that the amount of charge of
the battery 170 affects the amount of voltage and current drawn from the
photovoltaic array 122" (id. at 12). Appellants further argue even if DC bus
108, or another component connected to it, sets the demand for loads of
power, there is still no disclosure that DC charger 152 "would necessarily be
'controlled based on the amount of charge stored in the battery"' (id. at 12).
Appellants further argue that "the Examiner argues ... the amount of charge
of the battery would 'necessarily affect' the amount of power drawn from
the array"; and affecting the voltage and current drawn from the photovoltaic
array is passive, which is contrary to direct control of photovoltaic array (id.
at 13-14).
We are persuaded by Appellants' arguments. Specifically, we are
persuaded the Examiner erred in finding that control of the photovoltaic
array, as claimed, "is an inherent feature of Parmley" (Ans. 11). While we
agree with the Examiner's finding that control is not explicitly defined in the
claim, or even Appellants' Specification, the claim positively recites "a
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Application 12/107,857
voltage and current drawn from the array are controlled based on an amount
of charge stored in the battery" (id.; Cl. 7). While it could be speculated that
the photovoltaic array can be controlled, at least partially, by a load required
by a charging electric vehicle, we determine the photovoltaic array may also
operate independent of voltage and current draws placed on it. We agree
further with Appellants' argument that the power leveling logic disclosed in
Parmley is directed to the bus, not the photovoltaic array; and while the bus
may affect the photovoltaic array, it is too attenuated to infer inherent
control based on Parmley's electric car's battery storage (App. Br. 13-14).
Although demonstrating inherency of a feature is not necessary to
show obviousness, the Examiner relies on the noted inherency finding
without otherwise showing the disputed feature would have been obvious in
light of the teachings and suggestions of Parmley or the other references
relied upon. Accordingly, we are persuaded the Examiner erred in finding
the combination of Parmley, Gruber, and Bird teaches or suggests the
disputed limitation as recited in claim 7 and claims 6, 11-16, 22, 28-31, 3 7,
and 38, not separately argued. Since we agree with at least one of the
arguments advanced by Appellants, we need not reach the merits of
Appellants' other arguments.
It follows, we reverse the rejection of claims 6, 7, 11-16, 22, 28-31,
37, and 38 under 35 U.S.C. § 103(a) for obviousness over Parmley, Gruber,
and Bird.
35 U.S.C. § 103(a): Claims 3-5, 18-21, 24-27, and 32
Claims 3-5, 18-21, 24--27, and 32 depend from independent claims 7
and 22. The Examiner has not shown Maruyama cures the deficiencies of
Parmley, Gruber, and Bird. Therefore, for the reasons set forth above, we
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are constrained to reverse the rejection of claims 3-5, 18-21, 24--2 7, and 3 2
under 35 U.S.C. § 103(a) for obviousness over Parmley, Gruber, Bird, and
Maruyama.
35 U.S.C. § 103(a): Claims 8 and 23
Claims 8 and 23 depend from independent claims 7 and 22. The
Examiner has not shown Chaney cures the deficiencies of Parmley, Gruber,
and Bird. Therefore, for the reasons set forth above, we are constrained to
reverse the rejection of claims 8 and 23 under 35 U.S.C. § 103(a) for
obviousness over Parmley, Gruber, Bird, and Chaney.
35 U.S.C. § 103(a): Claim 17
Claim 1 7 depends from independent claim 7. The Examiner has not
shown Konoya cures the deficiencies of Parmley, Gruber, and Bird.
Therefore, for the reasons set forth above, we are constrained to reverse the
rejection of claim 17 under 35 U.S.C. § 103(a) for obviousness over
Parmley, Gruber, Bird, and Konoya.
ISSUE 3
35 U.S.C. § 103(a): Claims 33 and 39
Appellants assert their invention is not obvious over Parmley, Gruber,
and Bird (App. Br. 15-21). The issues presented by the arguments are:
Issue 3(a): Has the Examiner erred in concluding the combination of
Parmley, Gruber, and Bird teaches or suggests "an electrolyzer for
producing hydrogen, wherein the hydrogen is stored in tanks adjacent to the
electrolyzer or on the vehicle," as recited in claim 33?
Issue 3(b): Has the Examiner erred in concluding the combination of
Parmley, Gruber, and Bird teaches or suggests "an array of photovoltaic
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cells capable of charging a battery and arranged in series, parallel, or series
and parallel according to a voltage and power of each photovoltaic cell," as
recited in claim 3 3?
Issue 3(c): Has the Examiner erred by improperly combining the
teachings and suggestions of Parmley, Gruber, and Bird?
ANALYSIS
Issue 3(a):
Appellants argue Parmley, Gruber, and Bird does not disclose "an
electrolyzer for producing hydrogen, wherein the hydrogen is stored in tanks
adjacent to the electrolyzer or on the vehicle" (App. Br. 15-16).
Specifically, Appellants argue the hydrogen tanks disclosed in Parmley are
not adjacent to an electrolyzer (id. at 15). Appellants further argue the
Examiner's interpretation of adjacent, defined by the Examiner as "'close to
or lying near,"' (see Final Act. 21) is overbroad when considered in the
context of the claim 33 's "adjacent to the electrolyzer or on the vehicle"
recitation (App. Br. 16).
We are not persuaded by Appellants' arguments. The term "adjacent"
is not defined explicitly by the claim or Appellants' Specification; and
Appellants have not proffered sufficient evidence or argument that the
Examiner's reasonable interpretation of "adjacent" of "close to or lying
near" or "next to or adjoining something else" (Ans. 4), is unreasonable.
Thus, in light of this interpretation, we agree with the Examiner's
finding that Parmley's electrolyzer 134 is adjacent to hydrogen tanks 140
and 148 (id.). Appellants' arguments that adjacency must be considered in
terms of the optional vehicular placement is not persuasive; the claim merely
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requires the electrolyzer to either be adjacent to an electrolyzer or on the
vehicle (Cl. 33).
Issue 3(b):
Appellants next argue the combination of Parmley, Gruber, and Bird
does not disclose "an array of photovoltaic cells capable of charging a
battery and arranged in series, parallel, or series and parallel according to a
voltage and power of each photovoltaic cell" (App. Br. 16-21 ). Specifically,
Appellants argue "'each' implies at least some distinction between []
objects" and "Gruber does not distinguish between photovoltaic cells in
arranging them," so Gruber cannot teach arrangement according to the
voltage and power of each photovoltaic cell (id. at 17).
Appellants concede Gruber arranges cells to attempt to maximize
power output (id.); however, Appellants argue the arrangement and
rearrangement disclosed in Gruber is interchangeable and dependent on
quantity of power to "yield an approximately uniform output" of the whole
array, not each individual cell (id. at 18-19). In addition, according to
Appellants, the Examiner's finding that "Gruber' s arrangement of cells to
match a load is 'necessarily "according to the voltage and power of each
photovoltaic cell" within the broadest reasonable interpretation of the claim
as would be appreciated by one of skill in the art' .... effectively
bulldoze[ s] an entire limitation" and Gruber "never explicitly or implicitly
teaches" the arrangement of each cell (id. at 19-20). Appellants further
argue "[t]here is no mention of voltage and power of each cell in Gruber's
rearrangement algorithm" (id. at 20).
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We are not persuaded by Appellants' arguments that the Examiner
erred in finding Parmley discloses a photovoltaic array and it is well known
to arrange photovoltaic cells in series, parallel, or both (Ans. 5). We further
agree with the Examiner's finding that Gruber discloses "the cells are
arranged in series, parallel or a combination thereof to match a load" (id. at
6). As noted by the Examiner, claim 33 does not recite the nature of the
arrangement of the cells and indeed, does not distinguish between
photovoltaic cells (id.). Rather, claim 33 merely recites the array of cells are
"arranged in series, parallel, or series and parallel according to a voltage and
power of each photovoltaic cell."
We further agree Gruber discloses "series or parallel switching of
cells allows the array to match the load to achieve maximum power transfer"
(id. at 7 (citing Gruber 3 :29-31 )); and matching a load is in accordance with
voltage, current, and power (id. at 5). Thus, we find the combination of
Parmley and Gruber teaches or at least suggests circuit arrangement
according to each cell's voltage and power, as an arrangement of the
photovoltaic array is made according to the load placed on each cell in the
whole array. Despite Appellants' assertion that each cell of the array cannot
be considered as a whole or all together (Appeal Br. 21 ), even considering
Appellants' proffered definitions, we are not persuaded Gruber's array is not
arranged according to a voltage and power of each cell. Indeed, we find
Gruber teaches or at least suggests, considering each cell within the overall
group, to determine how the array should be arranged. In other words, all
cells can be considered or arranged according to the configuration of each
cell; similarly, each cell can be arranged in series or parallel creating an
array, according to the configuration of each cell.
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Issue 3(c):
Appellants further argue Parmley, Gruber, and Bird are improperly
combined. Specifically, Appellants argue "it is unclear how the load-
matching of Gruber would be achieved within the context of Parmley's
multi-port DC bus" (App. Br. 21 ). Appellants concede the combination "is
seemingly viable in the abstract, but leaves much to be desired" in
application because "Parmley never discloses that the DC bus ever demands
power from renewable power sources, or that the loads connect to the DC
[b ]us can affect the current and power drawn from a PV array connected"
(id. at 22).
We are not persuaded by Appellants' arguments because these
arguments appear to be directed to claims 1 and 22, but not to claim 33.
Specifically, claim 33 does not recite loads or load-matching.
Appellants have not proffered sufficient evidence or argument to
persuade us an ordinarily skilled artisan would not have found it obvious to
combine the teachings and suggestions of Parmley and Gruber (Final Act.
12-13; Ans. 8).
Accordingly, we are not persuaded the Examiner erred in finding the
combination of Parmley, Gruber, and Bird teaches or suggests the
limitations as recited in claim 33 and claim 39, not separately argued.
Further, we are not persuaded the Examiner improperly combined the
teachings and suggestions of Parmley, Gruber and Bird. Therefore, we
sustain the rejection of claims 33, and 39 under 35 U.S.C. § 103(a) for
obviousness over Parmley, Gruber, and Bird.
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DECISION
The Examiner's rejection of claims 7, 14, and 35 under
35 U.S.C. § 112, second paragraph as being indefinite is AFFIRMED.
The Examiner's rejection of claims 6, 7, 11-16, 22, 28-31, 37, and 38
under 35 U.S.C. § 103(a) as being unpatentable over Parmley, Gruber, and
Bird is REVERSED.
The Examiner's rejection of claims 33 and 39 under 35 U.S.C.
§ 103(a) as being unpatentable over Parmley, Gruber, and Bird is
AFFIRMED.
The Examiner's rejection of claims 3-5, 18-21, 24--27, and 32 under
35 U.S.C. § 103(a) as being unpatentable over Parmley, Gruber, Bird, and
Maruyama is REVERSED.
The Examiner's rejection of claims 8 and 23 under 35 U.S.C. § 103(a)
as being unpatentable over Parmley, Gruber, Bird, and Chaney is
REVERSED.
The Examiner's rejection of claim 17 under 35 U.S.C. § 103(a) as
being unpatentable over Parmley, Gruber, Bird, and Konoya is REVERSED.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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