Ex Parte Prakah-Asante et al

Patent Trials and Appeals Board

May 8, 2019

14933352 - (D) (P.T.A.B. May. 8, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/933,352 11/05/2015
46442 7590 05/10/2019
CARLSON, GASKEY & OLDS, P.C./Ford
400 W. MAPLE RD.
SUITE 350
BIRMINGHAM, MI 48009
FIRST NAMED INVENTOR
Kwaku 0. Prakah-Asante
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.
83598203; 67186-225PUS1 1437
EXAMINER
ALSOMIRI, MAID! A
ART UNIT PAPER NUMBER
3662
NOTIFICATION DATE DELIVERY MODE
05/10/2019 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):
cgolaw@yahoo.com
ptodocket@cgolaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KWAKU 0. PRAKAH-ASANTE,
VENKATARAMANI ANANDAN, and
SATISH B. CHIKKANNANA VAR
Appeal2018-005663
Application 14/933,352
Technology Center 3600
Before MICHAEL J. FITZPATRICK, LISAM. GUIJT, and
LEE L. STEPINA, Administrative Patent Judges.
GUIJT, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner's
rejection of claims 1-3, 5-13, and 15-22. 2 We have jurisdiction under
35 U.S.C. § 6(b ).
We AFFIRM.
1 Ford Global Technologies, LLC ("Appellant"), the applicant as provided
for under 37 C.F.R. § 1.46, is also identified as the real party in interest.
Appeal Br. 1.
2 Appeal is taken from the Final Office Action dated October 19, 201 7, as
supplemented by the Advisory Action dated November 16, 2017.
Appeal2018-005663
Application 14/933,352
STATEMENT OF THE CASE
Claims 1, 10, and 21 are the independent claims on appeal. Claim 1,
reproduced below, is exemplary of the subject matter on appeal.
1. An adaptive drive control method, comprising:
receiving a first input that characterizes a traffic condition
outside of an electrified vehicle[;]
receiving a second input that characterizes a driving style of a
driver of the electrified vehicle; and
using a powertrain mode controller to select an Auto-EV mode
or an EV-Now mode in response to both the first and second inputs. 3
THE REJECTIONS
I. Claims 1-3, 9-13, 19, and 20 stand rejected under 35 U.S.C.
§ 103 as unpatentable over Morisaki (US 2017 /0043790 Al; published Feb.
16, 2017) and Wang (US 2014/0081563 Al; published Mar. 20, 2014).
II. Claims 5-7 and 15-17 stand rejected under 35 U.S.C. § 103 as
unpatentable over Morisaki, Wang, and Yoshimi (US 2011/0307134 Al;
published Dec. 15, 2011 ).
III. Claims 8 and 18 stand rejected under 35 U.S.C. § 103 as
unpatentable over Morisaki, Wang, and Amamiya (US 2009/0024262 Al;
published Jan. 22, 2009).
3 The Specification defines "Auto-AV mode" as a mode wherein "an
internal combustion engine is used in combination with an electric machine
to selectively power the vehicle" (Spec. ,r 3) and "EV-Now mode" as a mode
wherein "the electric machine is used to power the vehicle." Spec. ,r 3; see
also id. ,r 16 ("The electric machine is configured to drive vehicle wheels
without the internal combustion engine when operating in the EV-Now
mode.").
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IV. Claims 21 and 22 stand rejected under 35 U.S.C. § 103 as
unpatentable over Dextreit (US 2015/0314771 Al; published Nov. 5, 2015)
and Malone (US 2014/0074330 Al; Mar. 13, 2014).
ANALYSIS
Rejection I
Independent claims 1 and 10
Regarding independent claim 1, the Examiner finds that Morisaki
discloses an adaptive drive control method including the claimed step of
receiving a first input that characterizes a traffic condition outside of an
electric vehicle because Morisaki discloses, inter alia, "information
generation unit 121 b has a function for calculating the travel load of each
section of the travel route on the basis of ... congestion information relating
to each section." Ans. 4--5 ( citing Morisaki ,r 49) ( emphasis omitted). The
Examiner also finds that Morisaki discloses using a powertrain mode
controller (i.e., hybrid control apparatus 110) to select between an Auto-EV
mode or an EV-Now mode in response to such a first input, as claimed.
Final Act. 3 (citing Morisaki ,r 42); see also Ans. 4; Morisaki ,r 37.
The Examiner also relies on Morisaki for disclosing that "accelerator
sensor 106 detects an amount by which an accelerator pedal is operated by a
driver, and outputs a signal corresponding to the detected accelerator pedal
operation amount," such that Morisaki at least suggests, if not explicitly
discloses, the claimed step of receiving a second input that characterizes a
driving style of a driver of the electrified vehicle. Final Act. 2-3 ( citing
Morisaki ,r 33); see also Ans. 5. The Examiner also finds that Morisaki
discloses that the powertrain mode controller (i.e., hybrid control apparatus
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110) selects powertrain modes in response to both the first input (i.e., a
traffic condition, as discussed supra) and the second input (i.e., a driving
style of a driver). Id. at 3 ( citing Morisaki ,r 42); see also Adv. Act. 2
( quoting Morisaki ,r 39 ("even in the EV mode, when the accelerator pedal is
depressed by a large amount such that a large amount of travel power is
required, the internal combustion engine is driven")); Ans. 5 (quoting
Morisaki ,r 49 (emphasis omitted) ("[t]he information generation unit 121b
calculates the travel load during normal travel on the basis of vehicle
information such as the movement speed ... and information relating to the
travel environment")).
Additionally, the Examiner finds Wang expressly teaches "an engine-
on time prediction for a hybrid vehicle," wherein "the second input
characterizes a driving style of a driver of the electrified vehicle." Final Act.
3 (quoting Wang ,r 53 ("[t]he algorithm determines if this is a known driver
at 86, and if it is, loads a stored driving style from a known driver profile"));
see also Ans. 5. The Examiner reasons that it would have been obvious to
modify Morisaki's vehicle control system "to consider the driver style," as
taught by Wang, "to further optimize the control of the vehicle." Final Act.
3; see also Adv. Act. 2 (reasoning that it would have been obvious "to
modify Morisaki' s second input of determining the driver's pedal operation
with Wang's driving style profile and the system would then automatically
switch between travel modes as disclosed by Morisaki").
Appellant argues that "Morisaki does not connect a detected amount
of accelerator pedal operation to any switching between [modes]," and thus,
"the detected amount of accelerator pedal operation is not an 'input' in the
manner of the claim." Appeal Br. 4. Appellant also argues that because
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Wang does not teach a relationship between driving style and switching
between modes, "modifying [Morisaki' s] accelerator pedal operation to be a
driver style would not result in [the claimed invention]," but rather, the
modification would result in "includ[ing] a driving style, but the switching
between [modes] would not be based on that driving style." Id. Appellant
submits that the Examiner improperly relied on hindsight. Id. at 5.
Morisaki discloses that "accelerator sensor 106 detects an amount by
which an accelerator pedal is operated by a driver, and outputs a signal
corresponding to the detected accelerator pedal operation amount."
Morisaki ,r 33. Morisaki also discloses that "hybrid control apparatus 110
determines allocations ( an output ratio) of driving force to the internal
combustion engine and the electric motor on the basis of detection results
from the ... accelerator sensor 106," and more specifically, "adjusts a
remaining charge of the battery 113 ... by modifying the allocations ( the
output ratio) of the driving force distributed to the internal combustion
engine and the electric motor." Id. ,r 37. As relied on by the Examiner
supra, Morisaki notes that "even in the EV mode, when the accelerator pedal
is depressed by a large amount such that a large amount of travel power is
required, the internal combustion engine is driven." Id. ,r 39. Thus,
Morisaki discloses that depression of the accelerator pedal is an input for
allocating driving force between the internal combustion engine and electric
motor, which is specifically used to switch from EV mode (i.e., "in which
the internal combustion engine is stopped and the electric motor is used") to
HV mode (i.e., "in which the internal combustion engine and the electric
motor are both used as drive sources"). Id. ,r 37. Thus, contrary to
Appellant's argument, a preponderance of the evidence supports the
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Examiner's finding that Morisaki discloses that a driver's operation of an
accelerator pedal is an input to a powertrain mode controller for switching
between Auto-EV and EV-Now modes, as claimed.
Appellant's argument also fails to apprise us of error in the
Examiner's determination that a driver's operation of an accelerator pedal is
representative----or the same as-a driver's style of driving ( as disclosed in
Morisaki). See Spec. ,r 62 ("[ d]river activity with the acceleration pedal and
steering wheel angle can be used to determine the driver style"). Nor does
Appellant's argument apprise us of error in the Examiner's reliance on
Wang for further defining a driver's historical operation of an accelerator
pedal as a driver's style of driving, which the Examiner reasons may also be
used as an input for Morisaki' s powertrain mode controller "to further
optimize the control of the vehicle." See Wang ,r 9 (disclosing
"establish[ing] engine-on-time percentage [for a hybrid electric vehicle] for
various driving patterns by using real-world driving conditions and driver
styles from historical and predicted driving data to result in an engine-on
time estimation"); see also id. ,r 31 ("[a]n algorithm for use with the vehicle
10 uses pattern prediction from a driving pattern identification method ... to
provide an EQT% [ ( engine-on time percentage)] estimation for the vehicle,"
whereby "[t]he set of driving patterns can be defined and differentiated by
traffic speed, road condition, traffic congestion levels, and roadway types, as
well as individual driving styles"). In other words, contrary to Appellant's
argument, Wang discloses a relationship between both traffic conditions and
driver styles as inputs to determine engine-on time (i.e., a vehicle operating
mode in which the internal combustion engine is running).
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Accordingly, we sustain the Examiner's rejection of independent
claim 1. Appellant chose not to present arguments for the patentability of
independent claim 10, and claims 9 and 12 depending from claims 1 and 10,
apart from the arguments presented supra, and therefore, for essentially the
same reasons as stated supra, we also sustain the Examiner's rejection of
claims 9, 10, and 12. Appeal Br. 5, 7.
Dependent claims 2 and 11
Claims 2 and 11 depend from independent claims 1 and 10,
respectively, and recite, in relevant part, using or configuring the powertrain
mode controller "to select an EV-Later mode in response to both the first
and second inputs." Appeal Br. 11, 12 (Claims App.). The Examiner finds,
inter alia, that Morisaki teaches using a powertrain mode controller to select
an EV-Later mode. Final Act. 3, 5 (citing Morisaki ,r,r 33, 50). More
specifically, the Examiner finds that Morisaki' s disclosure of "a planning
unit that plans one of a first travel mode in which an amount of power stored
in a battery is not maintained and a second travel mode in which the amount
of power stored in the battery is maintained" discloses that claimed subject
matter. Ans. 6-7 ( quoting Morisaki ,r 8; also citing ,r 4) ( emphasis omitted).
Appellant argues that the claimed EV-Now and EV-Later modes are
"separate and distinct," and the Examiner erred by relying on Morisaki's
EV-mode as teaching both the EV-Now and EV-Later modes. Appeal Br. 6.
Appellant submits that Morisaki' s charge depleting mode is the same as
Morisaki' s EV mode, and Morisaki' s charge sustaining mode is the same as
Morisaki' s HV mode, and therefore, Morisaki only discloses two different
modes-not three, as claimed. Reply Br. 2.
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We are not persuaded by Appellant's argument. The Specification
defines "Auto-AV mode" as a mode wherein "an internal combustion engine
is used in combination with an electric machine to selectively power the
vehicle" (Spec. ,r 3) and "EV-Now mode" as a mode wherein "the electric
machine is used to power the vehicle." Spec. ,r 3; see also id. ,r 16 ("The
electric machine is configured to drive vehicle wheels without the internal
combustion engine when operating in the EV-Now mode."). The
Specification further discloses that "[i]n the EV-Later mode, the powertrain
10 operates to conserve power that is stored within the battery 14," for
example, "the powertrain 10 operates in the EV-Later mode so that power
can be conserved and stored in preparation for an extended period of
operation in the EV-Now mode." Id. ,r 37. Thus, the claimed EV-Later
mode may be interpreted as a special type of Auto-AV mode, wherein the
internal combustion engine is used in combination with an electric machine
to selectively power the vehicle while conserving battery power; in other
words, the vehicle is not solely being powered by the electric machine (i.e.,
the EV-Now mode), and the internal combustion engine is intentionally
being allocated to power the vehicle so as to conserve battery power.
In the same way, Morisaki discloses that "a charge depleting (CD)
mode, which is a mode in which an amount of power stored in the battery
113 is consumed, and a charge sustaining (CS) mode, which is a mode in
which the amount of power stored in the battery 113 is maintained."
Morisaki ,r 38. In particular, Morisaki discloses that "[t]he CD mode is a
mode in which ... power charged to battery 113 is actively consumed, and a
mode in which EV [(i.e., electric vehicle)] travel is prioritized," such that
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"CD mode will be described as an EV mode." Id. ,r 39. Morisaki further
discloses that
[t]he CS mode is a mode in which the amount of power stored in
the battery 113 is maintained within a predetermined range of a
reference value, and a mode in which HV [ (hybrid vehicle)]
travel is prioritized by driving the internal combustion engine
and performing a regeneration operation on the electric motor
in accordance with the need to maintain the amount of stored
power. Hereafter, the CS mode will be described as an HV
mode.
Morisaki ,r 40 ( emphasis added). Thus, notwithstanding the nomenclature
used by Morisaki, a preponderance of the evidence supports the Examiner's
finding that Morisaki discloses three modes: (i) the EV or CD mode (i.e.,
wherein the electric motor is used or prioritized as the drive source), which
corresponds to the claimed EV-Now mode; (ii) an HV mode (i.e., wherein
the internal combustion engine and the electric motor are both used as drive
sources); and (iii) a CS mode (i.e., a particular type of HV mode, wherein
the internal combustion engine and the electric motor are both used as drive
sources while conserving battery power----or regenerating the electric motor),
which corresponds to the claimed EV-Later mode.
Regarding Appellant's argument that the Examiner's modification
"lacks a rational basis," we disagree, in that Morisaki, the primary reference,
expressly teaches the use of such an EV-Later mode to conserve battery
power, or further, to perform a regeneration operation, as set forth supra,
wherein no further modification to Morisaki' s hybrid control apparatus is
necessary. Appeal Br. 6.
Accordingly, we sustain the Examiner's rejection of claims 2 and 11.
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Dependent claims 3 and 13
Claims 3 and 13 depend from independent claims 1 and 10,
respectively, and recite, in relevant part, that "the traffic condition comprises
an upcoming traffic condition." Appeal Br. 11, 12 (Claims App.). The
Examiner finds, inter alia, that Morisaki discloses an upcoming traffic
condition because Morisaki' s traffic conditions are used to determine travel
loads for sections of a travel route to be traveled upon in the future. Ans. 7-
8. The Examiner also relies on Wang for "more clearly" disclosing the use
of "future predicted information." Ans. 7-8; Final Act. 4, 6 (citing Wang
,r 32) ( emphasis omitted). The Examiner reasons that it would have been
obvious to modify Morisaki' s input of a traffic condition to be a future
predicted traffic condition because Morisaki is determining travel loads for
sections of a travel route to be traveled upon in the future, and Wang
clarifies that such traffic condition may be a predicted traffic condition.
Ans. 7-8.
Appellant argues that the Examiner fails to state a prima facie case
because the Examiner's rejection lacks a reason to modify Morisaki, in view
of Wang. Appeal Br. 6; Reply Br. 2.
An ordinary meaning of the claim term "upcoming," consistent with
the Specification, is "coming up; about to take place, appear or be
presented." https://www.dictionary.com/browse/upcoming (last visited Apr.
29, 2019). Appellant's argument does not apprise us of error in the
Examiner's determination that, because Morisaki uses congestion
information (i.e., a traffic condition) to determine the travel load for an
upcoming section of a travel route for a vehicle, Morisaki individually
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discloses that the traffic condition comprises an upcoming traffic condition,
as claimed. See, e.g., Morisaki ,r,r 42, 46, 49, 50.
Accordingly, we sustain the Examiner's rejection of claims 3 and 13.
Claims 19 and 20
Claims 19 and 20 depend from independent claims 1 and 10,
respectively, and recite, in relevant part, that "a third [(or another)] input that
characterizes a current traffic condition outside of the electrified vehicle,
wherein the powertrain mode controller selects the Auto-EV mode or the
EV-Now mode additionally in response to the third input." Appeal Br. 13
(Claims App.). The Examiner finds that Wang discloses traffic speed, road
condition, and traffic congestion levels, as current traffic condition inputs,
and reasons that it would have been obvious to modify Morisaki' s hybrid
control apparatus 110 to use the inputs disclosed in Wang to select between
modes. Final Act. 6; see also Ans. 8 (reasoning that to do so "would be
obvious in the knowledge available to one of ordinary skill in the art").
Appellant argues that the Examiner has failed to state a prima facie
case because the Examiner's reasoning lacks a rational basis. Appeal Br. 7;
see also Reply Br. 2 ( arguing that the Examiner's reasoning only justifies
modifying Morisaki "to consider driving style").
We are not persuaded by Appellant's argument. Morisaki discloses
many examples of different types of information used as inputs to calculate a
travel load required to travel through respective sections of a travel route,
wherein the calculation is used by the hybrid control apparatus 110 to
automatically switch between the EV mode and the HV mode according to
the section being travelled. See, e.g., Morisaki ,r 42. Thus, the Examiner's
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reasoning (i.e., to include specific inputs as disclosed in Wang as inputs in
the system of Morisaki) has rational underpinning.
Accordingly, we sustain the Examiner's rejection of claims 19 and 20.
Rejection II
Dependent claims 5 and 15
Claims 5 and 15 depend from independent claims 1 and 10,
respectively, and recite, in relevant part, prompting a user to switch from the
Auto-EV mode to the EV-Now mode, or from the EV-Now mode to the
Auto-EV mode in response to the selecting. Appeal Br. 11, 12 (Claims
App.). The Examiner relies on Yoshimi for teaching prompting a user "to
depress the EV switch 30 again if the user desires the transition to the EV
mode travel control." Final Act. 7 ( citing Yoshimi ,r,r 79-83) ( emphasis
omitted). The Examiner reasons that it would have been obvious to modify
Morisaki' s apparatus, as taught by Y oshimi, "to provide the operator the
ability to give priority to EV travel." Final Act. 7 ( citing Yoshimi ,r 5). The
Examiner also determines that claims 5 and 15 broadly recite either
switching from the Auto-EV mode to the EV-Now mode or from the EV-
Now mode to the AUTO-EV mode, such that disclosing one of the
alternatives discloses the claimed subject matter. Ans. 9.
Appellant argues that "[t ]here is no teaching in Yoshimi of prompting
to move from the alleged EV-mode as is claimed." Appeal Br. 7. Rather,
"Yoshimi is in an HV mode when the alleged prompting occurs." Reply Br.
2.
We agree with the Examiner's claim interpretation, whereby claims 5
and 15 read on a disclosure of one of the two recited alternatives, namely,
Y oshimi' s disclosure "to prompt the user to depress the EV switch 30 again
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if the user desires the transition of the EV mode travel control." Y oshimi
,r 79. Notwithstanding, Morisaki expressly discloses that "hybrid control
apparatus 110 performs control to switch between the EV mode and the HV
mode in response to a selection result from the driver of the vehicle 100," as
an alternative to automatic switching, such that the Examiner's modification,
when applied to both of Morisaki' s manual switching modes, would result in
the claimed subject matter. Morisaki ,r 42.
Accordingly, we sustain the Examiner's rejection of claims 5 and 15.
Claims 6 and 16
Claims 6 and 16 depend from independent claims 1 and 10,
respectively, and recite, in relevant part, receiving an authorization to switch
from the Auto-EV mode to the EV-Now mode, or from the EV-Now mode
to the Auto-EV mode in response to the prompting, or with respect to claim
16, in response to the authorization. Appeal Br. 11, 12 (Claims App.). The
Examiner relies on Y oshimi for teaching that "the EV mark is changed to the
red-color continuous-on state in response to the satisfaction of the EV mode
permission condition due to the permission preparation control." Final Act.
7 ( citing Y oshimi ,r 83) ( emphasis omitted). The Examiner reasons that it
would have been obvious to modify Morisaki' s apparatus, as taught by
Y oshimi, "to provide the operator the ability to give priority to EV travel."
Id. The Examiner also determines that claims 6 and 16 broadly recite either
receiving an authorization to switch between the Auto-EV mode to the EV-
N ow mode or from the EV-Now mode to the AUTO-EV mode, such that
disclosing one of the alternatives discloses the claimed subject matter. Ans.
9.
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Appellant argues that "Y oshimi only presses the button to move to the
alleged EV-mode," and "[t]he user does not press the button to move from
the alleged EV-mode," and therefore, the modification fails to result in the
claimed subject matter. Appeal Br. 7-8.
For reasons similar to claims 5 and 15 supra, we agree with the
Examiner's claim interpretation; notwithstanding, Morisaki expressly
discloses manually switching between either mode, such that the Examiner's
modification, when applied to either of Morisaki' s manual switching modes,
would result in the claimed subject matter.
Accordingly, we sustain the Examiner's rejection of claims 6 and 16.
Claims 7 and 17
Claims 7 and 17 depend from independent claims 1 and 10,
respectively, and recite, in relevant part, wherein the authorization is
received from a driver interacting with a human machine interface. Appeal
Br. 11, 12 (Claims App.). The Examiner relies on Yoshimi for teaching that
"the authorization is received from a driver interacting with a human
machine interface." Final Act. 8 (citing Yoshimi ,r 12). Specifically, the
Examiner determines that Y oshimi' s EV switch, in the form of a button
pressed by the driver, is an example of where a human interfaces with a
machine, which is all that is required by claims 7 and 17. Ans. 10. The
Examiner notes that the claims do not specify a type of human machine
interface, such as a software button or touch screen display. Id. The
Examiner reasons that it would have been obvious to modify Morisaki's
apparatus, as taught by Y oshimi, "to provide the operator the ability to give
priority to EV travel." Final Act. 7.
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Appellant argues that Y oshimi' s "permission preparation portion"
fails to teach a "Human Machine Interface," as claimed. Appeal Br. 8.
We agree with the Examiner that the recitation of a "human machine
interface" reads on Y oshimi' s disclosure of a push button operated by the
driver.
Accordingly, we sustain the Examiner's rejection of claims 7 and 17.
Rejection III
Appellant chose not to present arguments for the patentability of
claims 8 and 18 depending from claims 1 and 10, apart from the arguments
presented supra for independent claim 1, and therefore, for essentially the
same reasons as stated supra, we also sustain the Examiner's rejection of
claims 8 and 18. Appeal Br. 5, 7.
Re} ection IV
Independent claim 21
Regarding independent claim 21, the Examiner finds that Dextreit
discloses an adaptive drive control method, as claimed, including receiving
(i) a first input that characterizes an upcoming traffic condition, because
Dextreit discloses determining the density of traffic responsive to traffic
density data received by the system from a traffic information service
( citing, e.g., Dextreit ,r 37); (ii) a second input that characterizes a current
traffic condition, because Dextreit discloses determining the density of
traffic responsive to detection of a prescribed number of vehicles passing the
vehicle within a prescribed period of time (citing, e.g., Dextreit ,r 37); and
(iii) a third input that characterizes a driving style, because Dextreit
discloses that the driver's demand for torque indicates that the vehicle is
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unable to meet the driver's currently desired driving style ( citing, e.g.,
Dextreit ,r 42). Final Act. 10-11.
The Examiner also finds that Dextreit discloses automatically, using a
powertrain mode controller, selecting one of an Auto-EV mode, an EV-
Later, or an EV-Now mode in response to the first, second and third inputs,
as claimed, because Dextreit discloses that "if the acceleration rate
achievable by means of the CIMG 123 alone subsequently exceeds the
minimum value accel_min, the ACC system 11 OA is arranged to switch off
the engine 121 provided no other conditions are met requiring the engine
121 to remain switched on." Final Act. 11 ( citing Dextreit ,r 97) ( emphasis
omitted). The Examiner determines that claim 21, as written, reads on a
prior art reference that discloses only one of the alternatives claimed, such
that Dextreit's disclosure of selecting an EV-Now mode based on the first,
second, and third inputs discloses the claimed subject matter. Ans. 10.
Alternatively, the Examiner relies on Malone for disclosing selecting one of
each of the three modes recited in claim 21. Ans. 1 O; Final Act. 11 ( citing
Malone ,r 37). The Examiner reasons that it would have been obvious to
modify Dextreit's apparatus with the hybrid vehicle control method as
taught by Malone "to improve the operation of the vehicle." Final Act. 11.
The Examiner further determines that "[ o ]ne [ of] ordinary skill in the
art would interpret switching off the engine is an example of switching to the
electrical mode (EV)," and finds that Dextreit expressly discloses slow
moving traffic, for example, is an input for switching off the engine, such
that Dextreit generally discloses using inputs to switch between modes.
Ans. 12.
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Appellant argues that neither Dextreit nor Malone discloses an EV-
Later mode, and also that switching off an engine "[ fails to teach] switching
between modes," as claimed. Appeal Br. 8. Appellant further argues that, in
Dextreit, the switching on and off the engine is not based on any inputs
identified by the Examiner, but is instead unrelated to the inputs. Id. at 9.
We agree with the Examiner's claim interpretation, in that claim 21
reads on a disclosure of selecting any one of an Auto-EV mode, an EV-Later
mode, or an EV-Now mode, in response to the first, second, and third inputs,
but does not require a disclosure of making such a selection of each one of
such modes individually. Thus, Appellant's argument does not apprise us of
error in the Examiner's reliance on Dextreit for disclosing the step of
selecting an engine-off mode, which we agree with the Examiner,
corresponds to an EV-Now mode.
Notwithstanding, and contrary to Appellant's argument, Malone
discloses all of the modes recited in claim 21. For example, Malone
discloses that"[ v ]ehicle propulsion system 100 may utilize a variety of
different operational modes depending on operating conditions encountered
by the vehicle propulsion system," wherein "[s]ome of these modes may
enable engine 110 to be maintained in an off state [(i.e., a deactivated state)]
... where combustion of the fuel at the engine is discontinued," whereby
"[electric] motor 120 may propel the vehicle," which corresponds to the
claimed "EV-Now mode" as defined in the Specification as discussed supra.
Id. ,r 17. Malone further discloses that "[ d]uring other operating conditions,
engine 110 may be set to a deactivated state ... while motor 120 may be
operated to charge energy storage device 150 such as a battery," which
corresponds to the claimed "EV-Later mode," as defined in the Specification
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as discussed supra. Id. ,r 18. Malone further discloses that "[ d]uring other
operating conditions, both engine 110 and motor 120 may each be operated
to propel the vehicle," which corresponds to the claimed "Auto-RV mode,"
as defined in the Specification as discussed supra. Id. ,r 19.
A preponderance of evidence also supports the Examiner's finding
that Dextreit discloses that the controller switches between modes based on
inputs because Dextreit expressly discloses "[t]he system may be operable
automatically to assume the second mode if whilst in the first mode it is
determined that a density of traffic exceeds a prescribed value," which
traffic density is correctly characterized by the Examiner as a traffic
condition, as well as a current traffic condition. Dextreit ,r 36. We are also
not apprised of error in the Examiner's characterization of the driver's
demand for torque as indicative of a driving style, or that such demand is
used as an in input for selection between modes. See, e.g., Dextreit ,r 7
("[ e ]mbodiments of the invention have the advantage that operation of the
vehicle in EV mode takes place unless one or more of the prescribed one or
more conditions is met"); ,r 16 ("the system may be operable wherein the
prescribed one or more conditions includes a condition that the driver
demands a rate of acceleration of the vehicle which exceeds a prescribed
threshold value").
Accordingly, we sustain the Examiner's rejection of independent
claim 21.
Claim 22
Claim 22 depends from independent claim 21 and recites, in relevant
part, "wherein the automatic selecting comprises selecting the EV-Now
mode when the upcoming traffic condition is less than a first threshold
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Application 14/933,352
value, the current traffic condition is greater than second threshold value,
and the driving style is less than a third threshold value." Appeal Br. 13
(Claims App.). The Examiner relies on Malone for teaching thresholds, and
reasons that it would have been obvious to modify Dextreit's method, as
taught by Malone, "to improve the operation of the vehicle." Final Act. 11-
12 (citing Malone ,r,r 37, 56). In particular, the Examiner finds that Malone
teaches selecting an EV-Now mode (i.e., a mode wherein the engine is
switched off) when (i) the vehicle's speed is below a prescribed low speed
threshold, which the Examiner determines corresponds to the claimed
upcoming traffic condition being less than a first threshold value; (ii) the
vehicle is following a followed vehicle in relatively slow moving traffic such
that the speed difference exceeds the prescribed value, corresponding to the
claimed current traffic condition being greater than second threshold value;
and (iii) the driver demands a rate of acceleration of the vehicle which
exceeds a prescribed threshold, which corresponds to the claimed driving
style being is less than a third threshold value. Ans. 13.
Appellant argues that Malone fails to teach the three threshold values
as recited in claim 22. Appeal Br. 9 (citing Malone ,r,r 37, 56). Appellant
also argues that "[t]he rejection fails to present a legally sufficient, rationally
based reason for modifying Dextreit to, among other things, select the
alleged EV-Now mode in response to the alleged upcoming traffic condition
being less than a first threshold," and "lacks any factual basis for the
Examiner's opinion that switching would 'improve the operation of the
vehicle."' Reply Br. 4.
We are not persuaded by Appellant's arguments. Appellant's
arguments fail to address with specificity the Examiner's findings with
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Application 14/933,352
respect to Malone, as set forth supra. Invitrogen Corp. v. Clontech Labs,
Inc., 429 F.3d 1052, 1068 (Fed. Cir. 2005) (unsubstantiated attorney
argument is no substitute for competent evidence). Further, Dextreit
provides ample evidence that switching between modes based on prescribed
conditions improves operational efficiency. A preponderance of the
evidence supports the Examiner's findings that Dextreit discloses switching
between modes when prescribed conditions are met. See, e.g., Dextreit,
Abstract; ,r 3.
Accordingly, we sustain the Examiner's rejection of claim 22.
DECISION
The Examiner's decision rejecting claims 1-3, 5-13, and 15-22 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). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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