Ex Parte Melichar

Board of Patent Appeals and Interferences

Aug 31, 2012

11301750 (B.P.A.I. Aug. 31, 2012)

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.
11/301,750 12/13/2005 Robert J. Melichar 2671-000002/US03B 9983
27572 7590 09/04/2012
HARNESS, DICKEY & PIERCE, P.L.C.
P.O. BOX 828
BLOOMFIELD HILLS, MI 48303
EXAMINER
RAMADAN, RAMY O
ART UNIT PAPER NUMBER
2859
MAIL DATE DELIVERY MODE
09/04/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte ROBERT J. MELICHAR
____________________

Appeal 2009-015348
Application 11/301,7501
Technology Center 2800
____________________

Before JOSEPH L. DIXON, THU A. DANG, and
JAMES R. HUGHES, Administrative Patent Judges.

HUGHES, Administrative Patent Judge.

DECISION ON APPEAL

1 Application filed December 13, 2005, claiming benefit of U.S. S/N
60/559,921 filed April 6, 2004. The real party in interest is COBASYS,
LLC. (App. Br. 3.)
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STATEMENT OF THE CASE
Appellant appeals from the Examiner’s rejection of claims 2, 6-11,
and 13-21. Claims 1, 12, and 23 have been canceled. Claims 3-5 and 22
have been withdrawn. (App. Br. 3.) We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.
Appellant’s Invention
The invention at issue on appeal concerns battery control modules and
methods for measuring and setting a battery state of charge (SOC). (Spec.¶¶
[0002], [0008]-[0011]; Abstract.)2
Representative Claim
Independent claim 6, reproduced below, with disputed limitations
italicized, further illustrates the invention:
6. A battery control module for use with a battery,
comprising:
a voltage measuring module that measures battery
voltage;
a current measuring module that measures battery
current; and
a state of charge (SOC) module that communicates with
said current and voltage measuring modules, determines low
and high reset voltages based on said battery current and a
polarization voltage of said battery, compares said battery
voltage and said low and high reset voltages, and resets a
battery SOC based on an outcome of said comparison.

2 We refer to Appellant’s Specification (“Spec.”); Appeal Brief (“App. Br.”)
filed March 31, 2009; and Reply Brief (“Reply Br.”) filed June 26, 2009.
We also refer to the Examiner’s Answer (“Ans.”) mailed May 12, 2009.
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Rejections on Appeal
1. The Examiner rejects claims 2, 6, 11, and 13-17 under 35
U.S.C. § 103(a) as being unpatentable over U.S. Patent App. Pub. No.
2002/0171429 A1, published Nov. 21, 2002 (“Ochiai”) and U.S. Patent App.
Pub. No. 2003/0097225 A1, published May 22, 2003 (“Teruo”).
2. The Examiner rejects claims 7-10 and 18-21 under 35 U.S.C.
§ 103(a) as being unpatentable over Ochiai, Teruo, and U.S. Patent No.
6,064,182, issued May 16, 2000 (“Eguchi”).

ISSUES
Based on our review of the administrative record, Appellant’s
contentions, and the Examiner’s findings and conclusions, the pivotal issues
before us follow:
1. Does the Examiner err in finding that the combination of Ochiai
and Teruo collectively would have taught or suggested:
a state of charge (SOC) module that communicates with
said current and voltage measuring modules, determines low
and high reset voltages based on said battery current and a
polarization voltage of said battery, compares said battery
voltage and said low and high reset voltages, and resets a
battery SOC based on an outcome of said comparison
(claim 6), within the meaning of Appellant’s claim 6 and commensurate
limitations of claim 17?
2. Does the Examiner err in concluding that that Ochiai and Teruo
are properly combinable?
3. Does the Examiner err in finding that the combination of Ochiai
and Teruo collectively would have taught or suggested that the “SOC
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module resets said battery SOC further based on whether a magnitude of
said battery current exceeds a predetermined threshold” as recited in claim
11?

FINDINGS OF FACT
We adopt the Examiner’s findings in the Answer and the Final Office
Action as our own.

ANALYSIS
Based on Appellant’s arguments (App. Br. 5-11) we select
independent claim 6 and dependent claim 11 as representative of Appellant’s
arguments and groupings. 37 C.F.R. § 41.37(c)(1)(vii).
Claim 6
Appellant contends that Ochiai and Teruo “fail to show, teach or
suggest a SOC module that determines low and high reset voltages based on
battery current and a polarization voltage of the battery.” (App. Br. 5-6; see
id., 7; Reply Br. 2-3.) Specifically, Appellant contends that “Ochiai does not
disclose determining low and high reset voltages based on a polarization
voltage” and “Ochiai does not disclose parameters used in determining
VU and VL.” (App. Br. 6.) Further Appellant contends that:
Teruo does not use SOC reset voltages. Instead of resetting
the SOC, Teruo continuously adjusts SOC throughout a
discharge voltage range of a battery, as is common.
In practice, Teruo determines an electromotive voltage
based on polarization voltage that is in turn based on detected
battery current and voltage . . . . Teruo does not show, teach or
suggest resetting SOC based on electromotive voltage and thus
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does not show, teach or suggest determining reset voltages
based on polarization voltage (or battery current), as in Claim 6.
(App. Br. 7.)
The Examiner sets forth a detailed explanation of the obviousness
rejections in the Examiner’s Answer with respect to each of the claims (Ans.
3-8) and, in particular, the rejection of claim 6. (Ans. 3-4, 6-8.)
Specifically, the Examiner submits that Ochiai describes low and high reset
voltages (VL and VU) as well as comparing battery voltage and the reset
voltages and resetting a battery SOC based on the comparison. (Ans. 3-4
(citing Ochiai, ¶¶ [0010]-[0013], [0070]-[0074], [0076]-[0079]).) The
Examiner further submits that Teruo describes determining, based on
polarization voltage and battery current, electromotive voltages (V1 and V2)
that are equivalent to the reset voltages. (Ans. 4, 6-7 (citing Teruo, ¶¶
[0014]-[0018], [0034], [0039], [0043]; Figs. 4, 7). The Examiner also
asserts that Teruo describes correcting the SOC based on the electromotive
voltages. (Ans. 7 (citing Teruo, ¶¶ [0040], [0045]-[0047], [0096]-[0097],
[0099]-[0100]; Figs. 4, 7).)
Upon consideration of the evidence on this record and each of
Appellant’s contentions, we find that the preponderance of evidence on this
record supports the Examiner’s findings and ultimate legal conclusion that
the combination of Ochiai and Teruo would have taught or at least suggested
the disputed features of representative claim 6. Accordingly, we sustain the
Examiner’s rejection of claim 6 for the reasons set forth in the Answer,
which we incorporate herein by reference. (Ans. Ans. 3-4, 6-8.) Our
additional analysis will be limited to the following points of emphasis.

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Initially we note that the disputed claim language is merely a
statement of intended use or purpose for the “state of charge (SOC)
module,” which in this instance does not further limit the scope of the claim.
See Boehringer Ingelheim Vetmedica, Inc. v. Schering-Plough Corp., 320
F.3d 1339, 1345 (Fed. Cir. 2003) (a statement of intended use “usually will
not limit the scope of the claim because such statements usually do no more
than define a context in which the invention operates”).
Even if we, arguendo, were to ascribe some weight to the disputed
claim limitation, Appellant fails to address the specific basis of the
Examiner’s rejection and instead argues that each of the references
individually does not teach the disputed features. (App. Br. 5-7.) We do not
find this type of argument to be persuasive in rebutting a prima facie case of
obviousness. One cannot show nonobviousness by attacking references
individually where the rejections are based on combinations of references.
In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986); In re Keller,
642 F.2d 413, 425 (CCPA 1981). In particular, Appellant argues that Ochiai
does not teach determining reset voltages and Teruo does not teach the
actual reset voltages. (Id.) The Examiner, however, cited Ochiai for the
reset voltages (Ans. 3-4) – these particular findings are undisputed – and
cited Teruo for determining the (reset) voltages (Ans. 4, 6-7).
Combinability
Appellant also contends that “the combination of Ochiai and Teruo is
improper.” (App. Br. 6, 7.) Specifically, Appellant contends that the
Examiner’s reasoning is insufficient (App. Br. 7-8) and that one of skill in
the art would not have combined the references because, for example, Teruo
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applies the SOC estimation method only during battery discharge (and not
both battery charging and discharging). (App. Br. 8-9.) We disagree.
The Examiner provides a rationale for combining the references – “it
would have been obvious . . . to modify the device as disclosed by Ochiai to
determine the high and low reset voltage based on the polarization voltage
and current” as taught by Teruo “to achieve a high degree of accuracy in
determining the state of charge of the battery.” (Ans. 4 (citing Ochiai ¶¶
[0014]-[0015]). This rationale is based on “some rational underpinning to
support the legal conclusion of obviousness.” KSR Int’l Co. v. Teleflex Inc.,
550 U.S. 398, 418 (2007) (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir.
2006)).
We further conclude that it would have been well with the skill of one
skilled in the art to combine such known techniques to determine voltages
for correcting a battery state of charge (SOC) as taught by Teruo and utilize
the determined voltages to adjust/correct an SOC (SOC reset voltages) as
taught by Ochiai. See KSR, 550 U.S. at 417 (“[I]f a technique has been used
to improve one device, and a person of ordinary skill in the art would
recognize that it would improve similar devices in the same way, using the
technique is obvious unless its actual application is beyond his or her skill”
(citations omitted)). Accordingly, we conclude that Ochiai and Teruo would
have at least suggested the disputed features of Appellant’s’ claim.
Thus, we find Appellant’s contrary arguments unpersuasive of error in
the Examiner’s obviousness rejection of representative claim 6. Appellant
also do not persuade us of error in the Examiner’s obviousness rejection of
independent claim 17 which includes limitations of commensurate scope or
dependent claims 2 and 13-16 not separately argued with particularity.
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(App. Br. 9-10.) Accordingly, we affirm the Examiner’s obviousness
rejection of claims 2, 6, 11, and 13-17.
Claim 11
Appellant contends that “Ochiai and Teruo do not show, teach or
suggest that an SOC module resets battery SOC based on whether a
magnitude of battery current exceeds a predetermined threshold. (App. Br.
9; see id., 10; Reply Br. 4-6.) As we explain with respect to claim 6 supra,
the functionality of the SOC module – “SOC module resets said battery SOC
further based on whether a magnitude of said battery current exceeds a
predetermined threshold” (claim 11) – is merely a statement of intended use,
which does not further limit the scope of the claim. Accordingly, we affirm
the Examiner’s obviousness rejection of representative claim 11.
Claims 7-10 and 18-21
Appellant does not separately argue claims 7-10 and 18-21 or the
obviousness rejection of these claims. (App. Br. 11.)

CONCLUSIONS OF LAW
Appellant has not shown that the Examiner erred in rejecting claims
12, 16-19, and 24 under 35 U.S.C. § 103(a).

DECISION
We affirm the Examiner’s rejection of claims 2, 6-11, and 13-21
under 35 U.S.C. § 103(a).

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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

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