Ex Parte Lohr

Board of Patent Appeals and Interferences

Sep 5, 2008

10895221 (B.P.A.I. Sep. 5, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte GUENTER LOHR
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Appeal 2008-1617
Application 10/895,2211
Technology Center 2800
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Decided: September 5, 2008
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Before SCOTT R. BOALICK, MARC S. HOFF, and CARLA M. KRIVAK,
Administrative Patent Judges.

BOALICK, Administrative Patent Judge.

1 Application filed July 20, 2004. Application 10/895,221 claims the
benefit under 35 U.S.C. § 119 of German application 103 35 018.7, filed
July 31, 2003. The real party in interest is Robert Bosch GmbH.
Appeal 2008-1617
Application 10/895,221

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the final rejection of
claims 1 and 3-5, all the claims pending in the application. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.

STATEMENT OF THE CASE
Appellant's invention relates to an apparatus for charging a battery.

Claim 1 is exemplary:
1. An apparatus for charging a battery, said apparatus
comprising:

a first transistor (T1) with a control input, through which
a charging current flows to a battery (B) connected to the first
transistor when said battery (B) is being charged;

a current source (T3, T4, R1, R2) for a control current for
said transistor, said current source being connected to the
control input of the first transistor (T1) to supply said control
current;

wherein said current source comprises means for
adjusting or setting said control current, so that the first
transistor is non-conducting or blocked and said charging
current flowing into said battery is shut off when a
predetermined maximum charging voltage at said battery is
reached; and

wherein the current source is connected to the control
input of the first transistor (T1) and to a Zener diode (ZD) as
well, so that, when a Zener voltage of the Zener diode is
exceeded, the control current no longer flows from said current
source (T3, T4, R1, R2) to the control input of the first
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transistor (T1) but flows away through the Zener diode (ZD), as
soon as said predetermined maximum charging voltage at said
battery is reached.

The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Fukui US 4,359,655 Nov. 16, 1982
Johnson, Jr. US 6,492,792 B1 Dec. 10, 2002

Claims 1, 3, and 5 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by Johnson Jr.
Claim 4 stands rejected under 35 U.S.C. § 103(a) as being obvious
over Johnson Jr. and Fukui.

Rather than repeat the arguments of Appellant or the Examiner, we
make reference to the Brief and the Answer for their respective details.
Only those arguments actually made by Appellant have been considered in
this decision. Arguments that Appellant did not make in the Brief have not
been considered and are deemed to be waived. See 37 C.F.R.
§ 41.37(c)(1)(vii).2

2 Except as will be noted in this opinion, Appellant has not presented any
substantive arguments directed separately to the patentability of the
dependent claims. In the absence of a separate argument with respect to
those claims, they stand or fall with the representative independent claim.
See 37 C.F.R. § 41.37(c)(1)(vii).
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Application 10/895,221

ISSUE
The issue is whether Appellant has shown that the Examiner erred in
rejecting claims 1, 3, and 5 under 35 U.S.C. § 102(b) and in rejecting claim
4 under 35 U.S.C. § 103(a). The issue turns on whether Johnson Jr. teaches
a current source connected to the control input of the first transistor and to a
Zener diode.

PRINCIPLES OF LAW
On appeal, all timely filed evidence and properly presented arguments
are considered by the Board. See In re Piasecki, 745 F.2d 1468, 1472 (Fed.
Cir. 1984).
In the examination of a patent application, the Examiner bears the
initial burden of showing a prima facie case of unpatentability. Id. When
that burden is met, the burden then shifts to the Applicant to rebut. Id.; see
also In re Harris, 409 F.3d 1339, 1343-44 (Fed. Cir. 2005) (finding rebuttal
evidence unpersuasive). If the Applicant produces rebuttal evidence of
adequate weight, the prima facie case of unpatentability is dissipated. In re
Piasecki, 745 F.2d at 1472. Thereafter, patentability is determined in view
of the entire record. Id. However, on appeal to the Board it is the
Appellant's burden to establish that the Examiner did not sustain the
necessary burden and to show that the Examiner erred. See In re Kahn, 441
F.3d 977, 985-86 (Fed. Cir. 2006).
Anticipation is established when a single prior art reference discloses
expressly or under the principles of inherency each and every limitation of
the claimed invention. Atlas Powder Co. v. IRECO Inc., 190 F.3d 1342,
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1347 (Fed. Cir. 1999); In re Paulsen, 30 F.3d 1475, 1478-79 (Fed. Cir.
1994).
"Section 103 forbids issuance of a patent when 'the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.'" KSR Int'l Co. v. Teleflex Inc., 127 S. Ct. 1727,
1734 (2007).
During examination of a patent application, a claim is given its
broadest reasonable construction consistent with the specification. In re
Prater, 415 F.2d 1393, 1404-05 (CCPA 1969). "[T]he words of a claim 'are
generally given their ordinary and customary meaning.'" Phillips v. AWH
Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (internal citations
omitted). The "ordinary and customary meaning of a claim term is the
meaning that the term would have to a person of ordinary skill in the art in
question at the time of the invention, i.e., as of the effective filing date of the
patent application." Id. at 1313.

ANALYSIS
Appellant contends that the Examiner erred in rejecting claims 1, 3,
and 5 as being anticipated by Johnson Jr. and in rejecting claim 4 as being
obvious over Johnson Jr. and Fukui. Reviewing the record before us and the
findings of facts cited above, we do not agree. In particular, we find that the
Appellant has not shown that the Examiner failed to make a prima facie
showing of anticipation with respect to claims 1, 3, and 5 and a prima facie
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showing of obviousness with respect to claim 4. Appellant failed to meet
the burden of overcoming these prima facie showings.
Regarding claim 1, Appellant argues that Johnson Jr. does not
anticipate because it does not teach a Zener diode connected to the control
input of the first transistor. (Br. 4-6.)
Appellant's argument is not commensurate with the scope of the
claim, as pointed out by the Examiner (Ans. 5). Claim 1 recites that the
current source is connected to: (1) the control input of the first transistor;
and (2) a Zener diode. The Zener diode is only recited as being connected to
the current source. The plain language of claim 1 does not require the Zener
diode to be connected to the control input of the first transistor. Instead, it is
the current source – not the Zener diode – which is required to be connected
to the control input of the first transistor. In addition to the control input, the
current source is also required to be connected to the Zener diode by the
plain language of claim 1.
The Examiner found that Johnson Jr. discloses a current source (31,
44, 32, 33, 43) connected to both: (1) the control input of the first transistor
2 (i.e., the base of transistor 2 is connected to element 31 of current source
(31, 44, 32, 33, 43)); and (2) a Zener diode 45 (i.e., Zener diode 45 is
connected to element 33 of the current source (31, 44, 32, 33, 43)).
(Ans. 3-4, 6-8; Johnson Jr., Abstract, col. 3, ll. 3-50 Fig. 3.) We agree with
the Examiner's findings. Under a broad but reasonable interpretation not
inconsistent with the Specification, the Examiner has shown how the
disclosure of Johnson Jr. meets the limitations of claim 1.
Appellant argues that the Zener diode 45 of Johnson Jr. is not
connected to a current source (Br. 5-6). Although Appellant admits that
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"[t]he Zener diode 45 is connected to the control input of the transistor 44,
. . . this transistor 44 is not part of a current source" (Br. 5) and further
argues that "[t]he two transistors 44 and 31 are not a current source" (Br. 5).
However, Appellant does not explain the error in the Examiner's findings
(Ans. 3-4, 6-8) that the combination of transistors 31 and 44 and resistors 32,
33, and 43 shown in Fig. 3 of Johnson Jr. comprise a current source.
Instead, Appellant merely points out that "these two transistors 31 and 44
connected to the control input of the transistor 2 are provided to switch on or
off the transistor 2." (Br. 5.) But this description of the operation of
transistors 31 and 44 does not demonstrate error in the Examiner's finding
(Ans. 3-4, 6-8) that they are part of a current source made up of elements 31,
44, 32, 33, and 43.
Accordingly, we conclude that Appellant has not shown that the
Examiner erred in rejecting claim 1 under 35 U.S.C. § 102(b). Claims 3 and
5 were not argued separately (Br. 6), and fall together with claim 1.
With respect to claim 4, Appellant summarily alleges that Fukui in
combination with Johnson Jr. "fails to show or suggest the Zener diode
connected to the base of the transistor." (Br. 6.) As discussed with respect
to claim 1, this argument is not commensurate with the scope of the claims.
Instead, it is the current source which is recited as being connected to the
control input of the first transistor. Because Appellant has not provided any
arguments regarding Fukui or any additional arguments regarding Johnson
Jr., we will sustain the rejection for the reasons discussed with respect to
independent claim 1, from which claim 4 ultimately depends.

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CONCLUSION OF LAW
We conclude that:
(1) Appellant has not shown that the Examiner erred in rejecting
claims 1, 3, and 5 for anticipation under 35 U.S.C. § 102(b).
(2) Appellant has not shown that the Examiner erred in rejecting
claim 4 for obviousness under 35 U.S.C. § 103.

DECISION
The rejection of claims 1, 3, and 5 for anticipation under 35 U.S.C.
§ 102(b) is affirmed.
The rejection of claim 4 for obviousness under 35 U.S.C. § 103 is
affirmed.

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

gvw

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