Ex Parte Jacobus

Patent Trial and Appeal Board

Aug 24, 2016

12364850 (P.T.A.B. Aug. 24, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/364,850 0210312009
25006 7590 08/26/2016
DINSMORE & SHOHL LLP
POBOX7021
TROY, MI 48007-7021
FIRST NAMED INVENTOR
Charles J. Jacobus
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.
CYB-11302/03 4836
EXAMINER
NELSON, FREDA ANN
ART UNIT PAPER NUMBER
3628
NOTIFICATION DATE DELIVERY MODE
08/26/2016 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):
docket@patlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHARLES J. JACOBUS
Appeal2014-006098
Application 12/364,8501
Technology Center 3600
Before MURRIEL E. CRAWFORD, NINA L. MEDLOCK, and
ROBERT J. SILVERMAN, Administrative Patent Judges.
SILVERMAN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1-9 and 11-18. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 According to the Appellant, the real party in interest is Cybemet Systems
Corporation. Appeal Br. 1.
Appeal2014-006098
Application 12/364,850
ILLUSTRATIVE CLAIM
1. A system for recharging an electric or hybrid electric
vehicle, comprising:
an interface enabling a user to obtain electrical power for
vehicle recharging purposes;
authentication apparatus;
a power control unit operative to deliver power from a
source of power to the interface but only after the user has been
approved by the authentication apparatus;
power consumption circuitry operative to determine how
much electrical power has been provided through the interface;
and
a remote data repository for storing the amount of power
consumed on a per-user basis, and for billing each user for that
amount;
a transceiver for communicating wirelessly to the data
repository;
an enclosure including a plug for insertion into a socket
connected to the source of power; and
wherein the interface, authentication apparatus, power
control unit, power consumption circuitry and transceiver are
housed in the enclosure and powered by the source of power
through the plug.
CITED REFERENCES
The Examiner relies upon the following references:
Pellegrino et al. US 2003/0120442 Al
(hereinafter "Pellegrino")
Chen et al. US 2010/0045232 Al
(hereinafter "Chen")
Kressner et al.
(hereinafter "Kressner")
US 7,693,609 B2
2
June 26, 2003
Feb.25,2010
Apr. 6, 2010
Appeal2014-006098
Application 12/364,850
REJECTIONS
I. Claims 1-3, 5-9, 12, and 14--18 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Pellegrino and Chen.2
II. Claims 4, 11, and 13 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Pellegrino, Chen, and Kressner.
FINDINGS OF FACT
We rely upon and adopt the Examiner's findings stated in the Final
Action at pages 2-9 and the Answer at pages 3-7, unless stated otherwise in
the Analysis below. Additional findings of fact may appear in the Analysis
below.
ANALYSIS
Rejection I
Claims 1-3, 5-9, 12, and 14--18 are argued as a group. Appeal Br. 3-
5. Claim 1 is selected for analysis herein. See 37 C.F.R. § 41.37(c)(l)(iv).
The Final Office Action states that the vehicle recharging system of
Pellegrino may be combined with Chen, which teaches a metered portable
interface for recharging vehicles having "a plug for insertion into a socket
connected to the source of power," as claimed in claim 1, because Chen's
metered and portable features would lead to increased revenues from
recharging fees. Final Action 4.
Furthermore, the Examiner finds that it would have been obvious to
one of ordinary skill in the art to make a simple substitution of Chen's plug
2 The Final Office Action (at page 3) omitted claim 12 and employed the
expression "anticipated by" in regard to a rejection under 35 U.S.C.
§ 103(a). See also Answer 3. The Appellant recognized that these errors
were inadvertent and do not affect the merits of the Appeal. See Appeal
Br. 3, nn.1-2.
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Appeal2014-006098
Application 12/364,850
for insertion into a socket, in place of Pellegrino' s connection to a power
source. Answer 5.
The Examiner also finds that other benefits identified in Chen (use
with public/semi-public outlets; interface may be used to provide reduced
charging rates; interface may prevent energy theft) are grounds for making
such a combination. Answer 5-6 (citing Chen i-fi-1 3-6).
The Appellant contests the propriety of the Examiner's rationale for
combining Pellegrino and Chen, arguing that there is no evidence for the
purported increase of revenue because all public charging stations need to
charge a fee in some manner. Appeal Br. 4. The Appellant also argues that
the Examiner's rationale is flawed because it is not related to providing
Chen's feature of a plug to Pellegrino' s charging system. Reply Br. 1.
The Appellant's argument is not persuasive of error. The Appellant's
remark, to the effect that the combination of Pellegrino and Chen would not
lead to increased revenues, mischaracterizes the Examiner's findings.
According to the Final Office Action, the combination of Pellegrino and
Chen would be desirable precisely because of the convenience and
portability made possible by their combined features - particularly the
addition of Chen's plug connection to a power source. Final Action 4. The
Examiner's finding, in this regard, is supported by evidence from Chen,
which states that the presence of vehicle-charging facilities increases the
attractiveness of stores located nearby. See Answer 4 (citing Chen i13).
The Appellant argues that Pellegrino teaches away from the claimed
plug connection to a power supply, because Pellegrino is directed to a
charging station that is anchored in the ground. Appeal Br. 4 (citing
Pellegrino i-f 15). Thus, according to the Appellant, employing Chen's plug
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Appeal2014-006098
Application 12/364,850
connection with Pellegrino' s system would render Pellegrino unsatisfactory
for its intended purpose and would change Pellegrino' s principle of
operation, by contravening Pellegrino' s "intentional hard-wired
configuration." Appeal Br. 5.
To the contrary, as the Examiner correctly finds, Pellegrino does not
discourage the use of a plug connection to a power source. Answer 4.
Indeed, the Appellant points to nothing in Pellegrino "'criticiz[ing],
discredit[ing], or otherwise discourag[ing]' investigation into" the use of a
plug, as would be needed to demonstrate teaching away. DePuy Spine, Inc.
v. Medtronic Sofamor Danek, Inc., 567 F.3d 1314, 1327 (Fed. Cir. 2009)
(quoting In re Fulton, 391F.3d1195, 1201 (Fed. Cir. 2004)). Moreover,
one of ordinary skill may seek the benefit of one reference at the expense of
a benefit of another reference. See In re Urbanski, 809 F.3d 1237, 1243--44
(Fed. Cir. 2016).
Accordingly, the rejection of claim 1 is sustained. Therefore, the
rejection of claims 2, 3, 5-9, 12, and 14--18, the Appellant argued together
with claim 1, is also sustained. See 37 C.F.R. § 41.37(c)(l)(iv).
Rejection II
Claims 4 and 13
To their respective independent claims (claims 1 and 12), claims 4 and
13 add a limitation reciting that "the power is single- or multi-phase at 120,
220 or 240 V AC."
The Final Office Action states that it would have been obvious to
combine the system of Pellegrino, as modified by Chen, with Kressner' s
teaching of using a standard 11 OV or 220V household electrical outlet to
recharge plug-in hybrid vehicle batteries, instead of doing so by burning fuel
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Appeal2014-006098
Application 12/364,850
in a combustion engine, in order to further lower emissions and increase gas
mileage. Final Action 8 (citing Kressner, col. 1, 11. 53-55).
The Appellant contends that the stated rationale for combining
Pellegrino and Chen with Kressner is deficient because using "single- or
multi-phase power at 120, 220 or 240 V AC" does not, by itself, lower
emissions or increase gas mileage. Appeal Br. 5---6.
The Appellant's argument is unpersuasive because it does not
demonstrate error in the Examiner's position. The reason for combining
Kressner's teaching of using a standard household electrical connection
(e.g., 220 V alternating current) to charge a hybrid electric vehicle is to
reduce the amount of energy that would otherwise need to be provided by
the vehicle's combustion engine, thus reducing the vehicle's emissions and
increasing the vehicle's gas mileage - benefits that Kressner identifies
explicitly. Kressner, col. 1, 11. 53-57. A reason to combine the teachings of
references may come from one of the references, as is the situation here. See
WMS Gaming Inc. v. Int'! Game Tech., 184 F.3d 1339, 1355 (Fed. Cir.
1999) ("The suggestion to combine may be found in explicit or implicit
teachings within the references themselves.")
Therefore, the Examiner's rejection of claims 4 and 13 is sustained.
Claim 11
Claim 11 depends from claim 1, adding the further limitation of "a
plurality of interfaces enabling multiple users to recharge different vehicles
at the same time."
The Final Office Action states that it would have been obvious to
modify Pellegrino's system in view of Kressner's teaching of charging a
plurality of vehicles, in order to increase revenues. Final Action 8-9 (citing
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Appeal2014-006098
Application 12/364,850
Kressner, col. 2, 11. 32-39). See also Answer 6-7. The Examiner also
explains that one of ordinary skill in the art would have recognized it as
predictable that more revenue could be incurred by having several vehicles
charging concurrently, rather than doing so one at a time. Answer 7.
The Appellant disputes the Examiner's position, contending that
increasing revenue is not a sufficient reason to combine the references
(Reply Br. 3) and that there is no evidence that the capacity to charge
multiple vehicles simultaneously increases revenues (Appeal Br. 6) unless
different vehicles actually do so (Reply Br. 3).
The Appellant's argument is not persuasive. The Examiner's finding
that a plurality of vehicles would employ a charging facility simultaneously
is supported by a preponderance of the evidence. Such a circumstance is
predictable, as the Examiner correctly finds (Answer 7), and is further
supported by Chen's teaching of providing a charging facility at a location
where multiple vehicles would be available to use it at the same time, such
as places of business (Chen i-f 3).
Therefore, the rejection of claim 11 is sustained.
DECISION
We AFFIRM the Examiner's decision rejecting claims 1-9 and 11-
18.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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