Ex Parte Thompson et al

Patent Trial and Appeal Board

Sep 8, 2016

12431800 (P.T.A.B. Sep. 8, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/431,800 0412912009
28395 7590 09/12/2016
BROOKS KUSHMAN P,CJFG1L
1000 TOWN CENTER
22NDFLOOR
SOUTHFIELD, MI 48075-1238
FIRST NAMED INVENTOR
Wayne Michael Thompson
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.
81180668 5856
EXAMINER
VANAMAN, FRANK BENNETT
ART UNIT PAPER NUMBER
3618
NOTIFICATION DATE DELIVERY MODE
09/12/2016 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):
docketing@brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WAYNE MICHAEL THOMPSON, JIMMY H. KAPADIA,
THOMAS SCOTT GEE, JOSEPH GERALD SUPINA,
ALLEN DENNIS DOBRYDEN, and TAMILVANAN ARUNACHALAM
Appeal2014-008278
Application 12/431,8001
Technology Center 3600
Before BIBHU R. MOHANTY, NINA L. MEDLOCK, and
CYNTHIA L. MURPHY, Administrative Patent Judges.
MURPHY, Administrative Patent Judge.
DECISION ON APPEAL
The Appellants appeal under 35 U.S.C. § 134 from the Examiner's
rejections of claims 1-7 and 10-15. We have jurisdiction over this appeal
under 35 U.S.C. § 6(b ).
We AFFIRM.
1 The Appellants identify the real party in interest as "Ford Motor
Company." (Appeal Br. 1.)
Appeal2014-008278
Application 12/431,800
STATEMENT OF THE CASE
The Appellants' invention "relates to hybrid electrical vehicles having
an all-electric drive mode." (Spec. 1, lines 7-8.)
Representative Claim
10. A hybrid electric vehicle, comprising:
a direct-start direct-injection engine;
a generator and a battery powered traction motor coupled
to the engine and traction wheels by associated gearing; and
a vehicle controller that starts the engine using direct start
in response to operating above a calibrated vehicle speed and
starts the engine using at least the generator otherwise.
Evidence
Griffith us 4,090,119 May 16, 1978
Warfield us 4,156,162 May 22, 1979
Gervasio us 4,556,801 Dec. 3, 1985
Yamamoto US 2005/0190524 Al Sept. 1, 2005
McGee US 7,013,213 B2 Mar. 14, 2006
Lewis US 2006/0254564 Al Nov. 16, 2006
Kobayashi US 7 347 803 B2
' '
Mar. 25, 2008
Weiss WO 2007 /099003 Al Sept. 7, 2007
Rejections
I. The Examiner rejects claims 1-7 and 10-15 under 35 U.S.C.
§ 103(a) as unpatentable over McGee, Lewis, and Kobayashi. (Final Action 2.)
II. The Examiner rejects claims 13-15 under 35 U.S.C. § 103(a) as
unpatentable over McGee, Lewis, Kobayashi, and Weiss. (Id. at 5.)
ANALYSIS
Claims 1, 4, and 10 are the independent claims on appeal, with the rest
of the claims on appeal (i.e., claims 2, 3, 5-7, and 11-15) depending
therefrom. (See Appeal Br., Claims App.) Independent claims 1 and 4 are
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Application 12/431,800
directed to a "hybrid electric powertrain" comprising an "engine" and a
"generator," and independent claim 10 is directed to a "hybrid electric
vehicle" likewise comprising an engine and a generator. (Id.)
Rejection I
The Appellants argue independent claims 1, 4, and 10 as a group (see
Appeal Br. 4---6) and we select independent claim 10 from this group to
decide this rejection. See 37 C.F.R. § 41.37(c)(l)(iv) ("\Vhen multiple
c1aims subject to the same ground of rejection are argued as a group or
subgroup by appellant, the Board rnay select a single claim from the group
or subgroup and rnay decide the appeal as to the ground of rejection with
respect to the group or subgroup on the basis of the selected claim alone").
As indicated above, independent claim 10 is directed to a hybrid
vehicle comprising an engine and a generator. (Appeal Br., Claims App.)
Independent claim 10 also requires the hybrid vehicle to comprise a
"controller" that "starts the engine using direct start in response to operating
above a calibrated vehicle speed and starts the engine using at least the
generator otherwise." (Id.)
The Examiner determines that the hybrid vehicle recited in independent
claim 10 would have been obvious over McGee, Lewis, and Kobayashi. (See
Final Action 2--4.) More particularly, the Examiner determines that it would
have been obvious to modify a hybrid vehicle (i.e., the hybrid vehicle
disclosed by McGee) so that the engine could be started in a direct-start mode
during high speed operation, and started in a generator/motor-assisted-start
mode during slower speed operation. (Id.)
The Appellants argue that the Examiner "relies on Kobayashi's clutch
control at high speed for demonstrating that something may be controlled
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Application 12/431,800
differently at high speed than low speed and then purports that it is obvious
to use direct start at high speed." (Appeal Br. 5.) According to the
Appellants, Kobayashi "teaches generally that any first and second control
methods for an engine may be selected based on vehicle speed," but
Kobayashi "clearly cannot render obvious every subsequent control method
that uses vehicle speed as a parameter." (Id.)
We are not persuaded by this argument because the Examiner does not
rely upon Kobayashi, alone, to teach that it would have been obvious to use
direct start high speed. The Examiner does find that Kobayashi teaches that
"it is well known to choose a first or second starting method for an engine
based on speed." (Final Action 4.) However, the Examiner's rejection also
relies upon additional findings which are sufficiently supported by the record.
Specifically, the Examiner relies on Lewis to teach that it is well
known to selectively start an engine using either a direct-start mode or an
assisted-start mode. (See Final Action 3.) Indeed, Lewis discloses that,
"starter assisted starts without pre-injection may be used under a first
condition, starter assisted start with pre-injection may be used under a
second condition, and starterless starts with pre-injection may be used under
a third condition." (Lewis i-f 65.) Lewis also discloses that a direct start can
be used, for example, "where the motor cannot rotate the engine
sufficiently." (Id. i-f 19.)
The Examiner also relies upon a "characteristic" that "springs from
the physics of electric machines and is well documented as being a common
fact understood by the ordinary practitioner." (Final Action 6.) This
characteristic is that an electric machine, when operating at higher speeds,
"will resultantly have less torque headroom than when operating at a lower
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Application 12/431,800
speed." (Answer 3.) As such, when an electrical machine is "being used to
drive the vehicle and operating in a high speed region (i.e., at a high vehicle
speed), it will have less (if any) spare torque available." (Id.) The Examiner
provides evidence (i.e., Griffith, Warfield, Gervasio) that "this characteristic
is quite well known as regards electrical machines employed in a number of
diverse art areas" and "evidence specific to vehicular venues" (i.e.,
Yamamoto) that "operation in a high speed region is well understood to be
associated with a low torque characteristic." (Final Action 6; see also
Answer 3.)
Further, the Examiner explains that "at a high speed, the motor will be
fully or nearly fully consumed with delivering drive torque and have less
ability to assist in starting the engine, while at a lower speed, the motor will
be capable of providing both a drive force and capability to assist in engine
starting." (Answer 3.) And the Examiner explains that a direct start of the
engine "will obviate having to rely on the electric machine to provide both
vehicle driving torque and engine starting torque." (Id.)
Thus, the Examiner's rejection does not rely upon Kobayashi, alone,
to render obvious the claimed controller using vehicle speed as a parameter.
Instead, the Examiner's rejection relies upon the combined teachings that:
1) the engine of a hybrid vehicle can be started using a direct start and/ or a
generator/motor-assisted start; 2) the generator/motor of the hybrid vehicle
will have little or no spare torque during high speed operation; 3) the
direct-start of the engine will relieve the generator/motor from having to
provide both driving torque and engine-starting torque; and 4) the starting
method for the engine of a hybrid vehicle can be based upon speed. The
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Application 12/431,800
Appellants do not adequately address why these combined teaching do not
render the claimed controller obvious.
The Appellants additionally argue that "[ n ]one of the references relied
upon recognize the issue of insufficient motor/generator torque to start the
engine at high vehicle speed" and thus, the Examiner's combination is based
upon "the impermissible use of hindsight." (Appeal Br. 4, 5.)
We are not persuaded by this argument because "[t]o determine
whether there was an apparent reason to combine the known elements in the
[claimed manner], it will often be necessary to look to ... the background
knowledge possessed by a person having ordinary skill in the art." KSR Int 'l
Co. v. Teleflex Inc., 550 U.S. 398, 419 (2007). Here, the Examiner
establishes that a person of ordinary skill in the art would have recognized the
issue of insufficient motor/generator torque to start the engine at high vehicle
speed. (See Final Action 5---6; see also Answer 3--4.) Moreover, the
Examiner "need not seek out precise teachings directed to the specific subject
matter of the challenged claim" as "the inferences and creative steps that a
person of ordinary skill in the art would employ" can be taken into account.
KSR at 419.
The Appellants further argue that Kobayashi "teaches away from the
proposed combination" and/or that "the resulting system would likely be
inoperable." (Appeal Br. 5---6.) According to the Appellants, a combination
of McGee, Lewis, and Kobayashi would "result in a hybrid vehicle having a
direct start engine that couples the motor/ generator to the engine at high
speeds." (Id. at 5.) We are not persuaded by this argument because the
Examiner's proposed combination does not involve a bodily incorporation of
Kobayashi's clutch-control features into the parallel powertrain
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Application 12/431,800
configuration of McGee's hybrid vehicle. The Examiner's combination is
premised upon direct starting the engine so that the motor/generator need not
provide engine-starting torque during high speed operation. In other words,
the Examiner makes clear that the proposed combination does not involve
the generator/motor being coupled to the engine during high speed
operation.
Accordingly, the Appellants do not persuade us that the Examiner errs
in rejecting independent claim 10 as unpatentable over McGee, Lewis, and
Kobayashi. Thus, we sustain the Examiner's rejection of independent
claim 10 under 3 5 U.S. C. § 1 0 3 (a). Independent claims 1 and 4 fall
therewith. See 37 C.F.R. § 41.37(c)(l)(iv) ("[T]he failure of the appellant to
separately argue claims which appellant has grouped together shall
constitute a waiver of any argument that the Board must consider the
patentability of any grouped claim separately~').
The Appellants do not argue dependent claims 2, 3, 5, 6, 11, and 12
separately or further (see Appeal Br. 6), so they also fall with the
independent claims. Thus, we also sustain the Examiner's rejection of
dependent claims 2, 3, 5, 6, 11 and 12 under 35 U.S.C. § 103(a) as
unpatentable over McGee, Lewis, and Kobayashi.
Claim 13 depends from independent claim 10 and recites that the
controller "starts the engine using both direct start and the generator when
operating below the calibrated vehicle speed." (Appeal Br., Claims App.)
Claims 14 and 15 depend from claim 13. (Id.) The Examiner finds that
Lewis teaches a mode involving both direct start and the generator, and that
it would have been obvious for the selection of this mode to be based upon a
low speed. (See Final Action 4.)
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Insofar as the Appellants argue dependent claims 13-15 separate I y for
this rejection (see Appeal Br. 7), we are not persuaded by these arguments.
As discussed above, Lewis discloses that an engine can be started using both
direct start and the generator under a second condition. (See Lewis i-f 65.)
The Appellants do not adequately address why the Examiner errs in finding
that Lewis's second condition could be a slower operating speed where the
generator/motor is capable of providing some of the required engine-starting
torque.
Thus, we sustain the Examiner's rejection of dependent claims 13-15
under 35 U.S.C. § 103(a) as unpatentable over McGee, Lewis, and
Kobayashi.
Rejection II
The Examiner additionally or alternatively rejects dependent
claims 13-15 on the ground that the vehicle recited therein would have been
obvious over McGee; Lewis; Kobayashi; and Weiss. (See Final Action 5.)
As discussed above, the Appellants do not adequately address why the
Examiner errs in rejecting dependent claims 13-15 as unpatentable over
McGee, Lewis, and Kobayashi. As such, we are not persuaded by the
Appellants' arguments regarding Weiss failing to show or suggest certain
elements recited in dependent claims 13-15 (see Appeal Br. 6-7) as Lewis
can be relied upon to teach these allegedly missing elements.
Thus, we sustain the Examiner's rejection of dependent claims 13-15
under 35 U.S.C. § 103(a) as unpatentable over McGee, Lewis, Kobayashi,
and Weiss.
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Application 12/431,800
DECISION
We AFFIRM the Examiner's rejections of claims 1-7 and 10-15.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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