12473314 (P.T.A.B. Feb. 26, 2016)

Ex Parte Yu et al

Patent Trial and Appeal BoardFeb 26, 2016

12473314 (P.T.A.B. Feb. 26, 2016)

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. 12/473,314 05/28/2009 Hai Yu 81191702 9346 28866 7590 02/29/2016 MACMILLAN, SOBANSKI & TODD, LLC - FORD ONE MARITIME PLAZA - FIFTH FLOOR 720 WATER STREET TOLEDO, OH 43604 EXAMINER TISSOT, ADAM D ART UNIT PAPER NUMBER 3663 MAIL DATE DELIVERY MODE 02/29/2016 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 PATENT TRIAL AND APPEAL BOARD ________________ Ex parte HAI YU, IHAB S. SOLIMAN, RYAN A. MCGEE, and MATHEW A. BOESCH ________________ Appeal 2013-011019 Application 12/473,314 Technology Center 3600 ________________ Before JAMES P. CALVE, GEORGE R. HOSKINS, and LEE L. STEPINA, Administrative Patent Judges. STEPINA, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Hai Yu et al. (Appellants) seek our review under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1–20. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM-IN-PART and enter a NEW GROUND OF REJECTION pursuant to our authority under 37 C.F.R. § 41.50(b). Appeal 2013-011019 Application 12/473,314 2 THE CLAIMED SUBJECT MATTER The claimed invention is directed to wheel torque disturbance suppression. Spec. 1 (Title). Claims 1, 11, and 19 are independent. Claim 1 is illustrative of the claims on appeal and is reproduced below. 1. A method for controlling an engine restart in a hybrid electric powertrain, comprising: (a) engaging a gear of a transmission driveably connected to the engine; (b) maintaining fluid pressure in a wheel brake after a brake pedal is released; (c) initiating the engine restart and starting a timer; (d) reducing fluid pressure in the wheel brake if the timer expires or a peak in engine speed following said restart is detected. Appeal Br. 21. REFERENCES RELIED ON BY THE EXAMINER Tamai ’827 US 7,600,827 B2 Oct. 13, 2009 Tamai ’007 US 7,516,007 B2 Apr. 7, 2009 THE REJECTIONS ON APPEAL (I) Claims 1–5, 8, 10–15, 18, and 19 are rejected under 35 U.S.C. § 103(a) as unpatentable over Tamai ’827. (II) Claims 6, 7, 9, 16, 17, and 20 are rejected under 35 U.S.C. § 103(a) as unpatentable over Tamai ’827 and Tamai ’007. Appeal 2013-011019 Application 12/473,314 3 ANALYSIS Rejection (I) Claim 1 Appellants argue that Tamai ’827 “discloses nothing about starting or restarting an engine” and instead describes a method that controls brake pressure to prevent vehicle rollback on an incline. Appeal Br. 7. In response, the Examiner states that the Background section of Tamai ’827 teaches that conventional hybrid systems turn off the engine when the vehicle is stopped and restart the engine when the brakes are released. Ans. 4. The Examiner further finds that the disclosure following this teaching in Tamai ’827 builds upon the system disclosed in the Background section. Ans. 4. We agree with the Examiner on this point. Tamai ’827 describes a system for inhibiting vehicle rollback. Abstract. Tamai ’827 states, “[h]ybrid powertrains typically turn off the engine when the vehicle is stopped and restart the engine when the brakes [pedals] are released. Vehicle rollback may occur between the time that the brake pressure starts to decay due to pedal release, and the time that sufficient powertrain output torque is present.” Col. 1, ll. 23–27.1 Although Appellants argue that an electric hybrid is able to produce powertrain torque without restarting an engine, e.g., by using an electric motor (Reply Br. 2), the statement from Tamai ’827 quoted above, taken in context, adequately supports the 1 We also note that Figure 3 of Tamai ‘827 depicts an engine RPM curve in conjunction with the anti-rollback process provided by Tamai ‘827, and in this figure, the engine RPM can be either at IDLE or at STOP when the vehicle velocity is zero. The RPM increases from STOP when the brake pedal is at POS B to a higher level when the brake pedal is at POS C. Appeal 2013-011019 Application 12/473,314 4 Examiner’s position that Tamai ’827 restarts the engine when the brakes (pedals) are released, and Tamai ’827 teaches a way of inhibiting the rollback (via a brake pressure reduction process discussed throughout Tamai ’827) that may occur after the brakes are released. Regarding the requirement in claim 1 for “engaging a gear of a transmission drive ably connected to the engine” (Appeal Br. 21), Appellants argue “Tamai ’827 discloses merely coordinating the clutch fill rate with brake pressure release rate.” Appeal Br. 7. In response, the Examiner states that Tamai ’827 discloses transferring drive torque through a transmission and that the clutch fills and engages the forward drive gear. Ans. 3 (citing Tamai ’827, col. 2, ll. 44–46 and col. 5, ll. 7–9). We agree with the Examiner on this point. Although Appellants point out that the Examiner, in the Answer, cites a different portion of Tamai ’827 than the Examiner cited in the Final Office Action (Reply Br. 1), Appellants do not explain persuasively why the disclosure in Tamai ’827 regarding engagement of the forward drive gear (col. 5, ll. 7–9) does not qualify as “engaging a gear of a transmission driveably connected to the engine” as required by claim 1. Appellants further argue that “Tamai ’827 discloses no timer, no starting of a timer, and no starting of a timer when an engine restart is initiated, as claim 1 of the subject application recites.” Appeal Br. 8. In response, the Examiner states, “Tamai ’827 disclose[s] a threshold time and determining the expiration thereof (see col. 4, lines 40–44 for one instance; see also claim 10).” Ans. 4–5. Based on this teaching, the Examiner finds that a disclosure of a timer in Tamai ’827 is implicit or that it Appeal 2013-011019 Application 12/473,314 5 would have been obvious to use a timer to determine whether the threshold time had been exceeded. Ans. 5. Tamai ’827 states, “Alternatively, the BPR [brake pressure reduction] routine can be initiated after a threshold time (tTHR) has expired after the brake pressure line-lock solenoid 50 was originally actuated ON. After tTHR expires, the brake pressure is ramped down based on a calibratable slope.” Col. 4, ll. 40–44. Appellants do not explain persuasively how the time threshold disclosed by Tamai ’827 does not require use of a timer or at least suggest the use of a timer such that such use would have been obvious. Further, regarding when the timer must be started: As a general rule, “[u]nless the steps of a method [claim] actually recite an order, the steps are not ordinarily construed to require one.” However, a claim “requires an ordering of steps when the claim language, as a matter of logic or grammar, requires that the steps be performed in the order written, or the specification directly or implicitly requires” an order of steps. Mformation Techs., Inc. v. Research in Motion Ltd., 764 F.3d 1392, 1398– 99 (Fed. Cir. 2014). We do not interpret claim 1 to require starting the timer at the moment the engine start is initiated. In this regard, we note that dependent claim 4 recites, in part, “setting the timer to a predetermined period length at the beginning of step (c)” (Appeal Br. 21), and Appellants state that claim 4 recites “starting a timer when an engine restart request occurs” (Appeal Br. 9; Reply Br. 3). Thus, as claim 4 (which depends from claim 1) specifically recites the start time of the timer as beginning at step (c), we interpret independent claim 1 to allow for the timer to start later than at the beginning of step (c). This “starting a timer” claim requirement is met, or at least suggested, by Tsai ’827 when a timer is started to measure the threshold time tTHR. Appeal 2013-011019 Application 12/473,314 6 Appellants further argue that “Tamai ’827 discloses nothing about detecting a peak in engine speed following an engine restart.” Appeal Br. 8. The Examiner’s position is that claim 1 does not require this feature because the method of claim 1 recites this feature as one of two alternatives. Ans. 5–6. We agree with the Examiner on this point. Claim 1 recites, in part, “reducing fluid pressure in the wheel brake if the timer expires or a peak in engine speed following said restart is detected.” Appeal Br. 21 (emphasis added). Thus, under a broadest reasonable interpretation of the method recited in claim 1, only one of the two alternatives is required. Accordingly, we sustain the rejection of claim 1 as unpatentable over Tamai ’827. Claim 2 Dependent claim 2 recites, in part, “determining an adaptive brake pressure by adding to [a] predetermined brake pressure an adaptive brake pressure correction that accounts for powertrain states, predicted residual powertrain wheel torque, road gradient load torque compensation, and tolerance compensation.” Appeal Br. 21. Appellants argue Tamai ’827 fails to disclose this feature and “[t]he [] text passages of Tamai ’827 [cited by the Examiner] describe use of a vehicle stability enhancement system (VSES), which maintains vehicle movement along an intended path and accounts for road incline when determining a brake pressure that prevents vehicle rollback on the incline.” Appeal Br. 9. In response, the Examiner cites various portions of columns 3 and 4 of Tamai ’827. Ans. 6. However, it is not evident, and the Examiner does not Appeal 2013-011019 Application 12/473,314 7 cogently explain, how these portions disclose the specific parameters that the above-quoted portion of claim 2 “accounts for.” Accordingly, we do not sustain the Examiner’s rejection of claim 2 as unpatentable over Tamai ’827. Claims 4, 14 Dependent claim 4 depends from claim 1 and recites, in part, “setting the timer to a predetermined period length at the beginning of step (c); reducing fluid pressure in the wheel brake if the period expires before the engine restarts.” Appeal Br. 21. Dependent claim 14 recites substantially similar features, but depends from claim 11. Appeal Br. 23. The Examiner finds that Tamai ’827 maintains brake pressure for a predetermined time after forward propulsion of the vehicle is initiated. Ans. 6 (citing Tamai ’827, claim 22 and col. 4, ll. 40–44). Appellants argue that this finding does not correspond to the above- quoted requirement of claim 4 because “[o]ne skilled in the relevant art would know, and a careful reading of the description of the subject application indicates that an engine restart request does not have the same meaning as initiating forward propulsion of a vehicle.” Appeal Br. 9–10 (emphasis added); see also Reply Br. 3. We do not agree that restarting the vehicle engine does not correspond to initiating forward propulsion in Tamai ’827. The background explanation in column 1, lines 23–27 of Tamai ’827 supports the Examiner’s finding that Tamai ’827 restarts the engine when the brakes are released, and rollback may occur between the time brake pressure decays due to pedal release and the time the powertrain builds sufficient torque. See Tamai ’827, col. 1, ll. 23–27 (emphasis added). This passage supports a finding that restarting the engine corresponds to initiating forward propulsion inasmuch as Tamai ’827 Appeal 2013-011019 Application 12/473,314 8 indicates that the sufficient powertrain output torque will be present. In other words, the fact that sufficient powertrain output torque is forthcoming during this time period supports a finding that forward propulsion was initiated at the time of engine restart. Accordingly, we are not apprised of error in the Examiner’s rejection of claims 4 and 14. Claims 5, 15 Appellants make similar arguments for the patentability of claims 5 and 15 as those discussed above for claims 4 and 14. Appeal Br. 10–11. For the same reasons discussed above with respect to the rejection of claims 4 and 14, we sustain the Examiner’s rejection of claims 5 and 15. Claim 8 Dependent claim 8 recites, “wherein step (d) [of claim 1] further comprises: using one of an engine speed peak, a sensor, and an estimation based engine torque as indicative of an occurrence of a powertrain torque spike; and reducing fluid pressure in the wheel brake after the powertrain torque spike occurs.”2 Amendment 3 (filed on April 10, 2012). Appellants argue that “Tamai ’827 is silent regarding an engine torque surge, Tamai ’827 discloses nothing using one of an engine speed peak, a sensor, and an estimation based engine torque as indicative of an occurrence of a powertrain torque surge, as claim 8 recites.” Appeal Br. 11. 2 We note that claim 8 in Appellants’ claim appendix does not fully reflect the Amendment filed on April 10, 2012, and entered by the Examiner in the Advisory Action dated April 23, 2012. Specifically, claim 8 in the entered Amendment recites a “spike” after the first instance of powertrain torque rather than a “surge.” Appeal 2013-011019 Application 12/473,314 9 Regarding reducing fluid pressure in the brake after the powertrain torque spike, Appellants argue that “[t]he Examiner is confusing engine speed with a powertrain torque spike.” Appeal Br. 11. In response, the Examiner states that the accelerator pedal position is directly related to the engine torque threshold. Ans. 7. The Examiner finds that Tamai ’827 teaches releasing brake pressure based on a large torque level. Ans. 7 (citing Tamai ’827, col. 5, ll. 10–22). We are not apprised of Examiner error on this point. Tamai ’827 states, “[w]hen the engine torque (TENG) exceeds TENGTHR, the BPR routine is initiated.” Col. 5, ll. 14–15. In other words, Tamai ’827 reduces fluid pressure in the wheel brake after a powertrain torque spike occurs. Appellants do not direct our attention to any definition of “spike” that would exclude the point where the engine torque (TENG) exceeds TENGTHR in Tamai ’827. Further, we agree with the Examiner that accelerator pedal position is related to engine torque, and thus, Tamai ’827 uses a sensor as indicative of an occurrence of a powertrain torque spike. Accordingly, we sustain the Examiner’s rejection of claim 8. Claim 10, 18 Dependent claim 10 recites, “maintaining wheel torque substantially constant using negative brake torque at a vehicle wheel to at least partially suppress a spike in engine crankshaft torque transmitted to the wheel while the engine is restarting.” Appeal Br. 22. Claim 18 depends from claim 11 and recites similar features. Appeal Br. 24. Appellants argue that Tamai ’827 uses the VSES to maintain vehicle movement along an intended path, and the VSES accounts for road incline to prevent vehicle rollback. Appeal Br. 12. According to Appellants, the Appeal 2013-011019 Application 12/473,314 10 VSES does not maintain constant wheel torque using negative brake torque to suppress a spike in engine crankshaft torque transmitted to the wheel while the engine is restarting. Appeal Br. 12. The Examiner finds “Tamai ’827 teaches that brake torque is applied,” and the Examiner determines that, “[e]ven though the torque ‘spike’ is not explicit, it would have been obvious that slick, icy or dangerous conditions may transmit too much torque to the wheel.” Ans. 7; see also Final Act. 7 (citing Tamai ’827, col. 3, ll. 27–42). We agree with Appellants on this point. Although Tamai ’827 teaches selectively actuating one or more of brakes 24 to assist in driving on dangerous surfaces (see col. 3, ll. 27–42), this operation is during the process of driving, and Tamai ’827 is silent regarding providing maintaining wheel torque substantially constant by using negative brake torque while the engine is restarting. Accordingly, we do not sustain the Examiner’s rejection of claims 10 and 18. Claim 11 Appellants again argue that Tamai ’827 “discloses nothing about starting or restarting an engine.” Appeal Br. 12; see also Reply Br. 6. Appellants also assert that the text of Tamai ’827 cited by the Examiner (see Final Act. 4 (citing Tamai ’827, col. 4, l. 65–col. 5, l. 9)) for the process of engaging a gear of the transmission driveably connected to an engine does not disclose this feature. Appeal Br. 13. These arguments fail for claim 11 for the same reasons discussed above regarding the rejection of claim 1. Appellants further argue that Tamai ’827 teaches brake pressure reduction on the basis of engine rotational speed or clutch-fill rate of the transmission. Appeal Br. 13. Appellants contend this process operates to Appeal 2013-011019 Application 12/473,314 11 avoid engine torque spike suppression, whereas claim 11 recites suppressing engine torque spikes by holding brake pressure high. Appeal Br. 13. Appellants further argue, “Tamai ’827 discloses nothing about determining a magnitude of pressure in vehicle wheel brakes that would at least partially suppress a spike in engine crankshaft torque transmitted to the wheel while the engine is restarting.” Appeal Br. 13. We do not agree with Appellants’ arguments. As discussed above, Tamai ’827 applies brake pressure during engine restart. Appellants do not explain persuasively why the brake pressure disclosed in Tamai ’827, even during the process of being reduced, does not “at least partially suppress a spike in engine crankshaft torque transmitted to the wheel” as required by claim 11 (emphasis added). As for determining the magnitude of the pressure that would at least partially suppress a spike in engine crankshaft torque transmitted to the wheel, although Tamai ’827 controls its brake pressure (determines its magnitude) for another purpose, i.e., to prevent roll- back, this brake pressure would perform the function required in claim 1 inasmuch as claim 1 requires only partial suppression of the spike. Appellants’ remaining arguments for the patentability of claim 11 are similar to those made for the patentability of claim 1 and are unpersuasive for the same reasons. We sustain the Examiner’s rejection of claim 11. Claim 13 Dependent claim 13 recites, “releasing pressure in vehicle wheel brakes; and increasing pressure in vehicle wheel brakes in response to manual depression of the brake pedal.” Appeal Br. 23. Appellants contend that the Examiner did not cite any specific portion of Tamai ’827 for the above-noted feature and assert, “Tamai ’827 discloses Appeal 2013-011019 Application 12/473,314 12 holding and releasing brake pressure but nothing about increasing pressure in vehicle wheel brakes in response to manual depression of the brake pedal, as claim 13 recites.” Appeal Br. 15; see also Reply Br. 8. The Examiner finds, “[o]ne of ordinary skill (and even those not of ordinary skill) know that if the driver is not manually depressing the brake pedal, pressure will eventually be released in the wheel brakes, also if the brake pedal is displaced downward/is depressed by the driver, the brake pressure in the wheel braking system goes up.” Ans. 8. We agree with the Examiner. Moreover, Tamai ’827 teaches that brake pressure decays due to brake pedal release. Col. 1, ll. 26–27. Further, the system disclosed by Tamai ’827 includes “a brake pedal that is operable to induce a brake pressure in the brake system.” Col. 1, ll. 42–44; see also Figs 2–3. Claim 19 Independent claim 19 recites, in part, “a controller configured to maintain predetermined pressure in a wheel brake, initiate the engine restart after the brake pedal is released, and reduce pressure in the wheel brake if the timer expires or a peak in engine speed following the restart is detected.” Appeal Br. 24 (emphases added). The Examiner rejects claim 19 “on the grounds asserted for claims 1 and 11.” Final Act. 7. The Examiner also finds that Fig. 1 of Tamai ’827 provides a controller for executing the process disclosed by Tamai ’827. Ans. 9. Appellants argue, “Tamai ’827 discloses no controller that reduces pressure in the wheel brake if a timer expires or a peak in engine speed following an engine restart is detected.” Appeal Br. 16. Appeal 2013-011019 Application 12/473,314 13 We interpret the controller recited in claim 19 to include programming or some physical configuration that performs the functions recited in the claim. In other words, in contrast to the requirements of method claim 1, the controller recited in claim 19 is programmed or otherwise configured for both of the alternatives separated by the word “or.” Thus, the controller reduces the pressure in the wheel brake if a peak in engine speed following the restart is detected. The Examiner finds that Tamai ’827 discloses “reducing fluid pressure in the wheel brake if the timer expires or a peak in engine speed following said restart is detected (see col. 4, lines 40-44).” Final Act. 4–5. This portion of Tamai ’827 states, “[a]lternatively, the BPR routine can be initiated after a threshold time (tTHR) has expired after the brake pressure line-lock solenoid 50 was originally actuated ON. After tTHR expires, the brake pressure is ramped down based on a calibratable slope.” The Examiner does not explain persuasively how the above-noted portion relates to a peak engine speed, and it is not evident from Tamai ’827 that this is so. Accordingly, we do not sustain the Examiner’s rejection of claim 19 as unpatentable over Tamai ’827. Claim 3 and 12 Appellants do not make separate arguments for the patentability of claims 3 and 12. Accordingly, we sustain the rejection of these claims for the same reasons discussed above for the rejections of claims 1 and 11 from which claims 3 and 12 respectively depend. Appeal 2013-011019 Application 12/473,314 14 Rejection (II) Claim 6 Dependent claim 6 depends from method claim 1 and recites, “setting the timer to a predetermined period length at the beginning of step (c); extending the period length if an automatic engine restart fails; and reducing fluid pressure in the wheel brake if the engine restarts before the period expires.” Appeal Br. 22 (emphases added). Appellants argue that neither Tamai ’827 nor Tamai ’007 “discloses anything about a failed automatic engine restart or extending a period length if an automatic engine restart fails, as claim 6 recites.” Appeal Br. 16. We do not interpret claim 6 to require extending the period length because claim 6 makes this action contingent on an automatic engine restart failing, which may not occur. Further, we do not interpret claim 6 to require reducing the fluid pressure in the wheel brake because claim 6 makes this action contingent upon the engine restarting before the recited period expires, and this may not occur. Accordingly Appellants’ arguments based on these features are not persuasive, and we affirm the rejection of claim 6. As our interpretation of claim 6 differs from that used by the Examiner, we designate our affirmance of the rejection of claim 6 a NEW GROUND OF REJECTION. Claims 7, 9, 16, and 17 All four of these claims recite, “monitoring engine speed to determine that a peak in engine speed has occurred.” The Examiner finds that the combination of Tamai ’827 and Tamai ’007 teaches monitoring engine speed to determine that an engine speed has occurred, and “a peak speed is an arbitrary speed that would be obvious to Appeal 2013-011019 Application 12/473,314 15 choose by one of ordinary skill in the art at the time of the invention.” Final Act. 8 (citing Tamai ’007, col. 6, ll. 26–49, and col. 6, l. 65 to col. 7, l. 3). Appellants argue, “[n]either of the Tamai patents discloses the step of determining that a peak in engine speed has occurred.” Appeal Br. 18. We agree with Appellants on this point. The Examiner does not explain persuasively how the RPM levels taught in Tamai ’007 correspond to a peak engine speed or where this feature would be found in Tamai ’827. Accordingly, we do not sustain the Examiner’s decision to reject claims 7, 9, 16, and 17 as unpatentable over Tamai ’827 and Tamai ’007. Claim 20 Claim 20 depend from claim 19. The Examiner does not rely on Tamai ’007 in any way that would remedy the deficiency in the rejection of claim 19. Accordingly, we do not sustain the Examiner’s rejection of claim 20 as unpatentable over Tamai ’827 and Tamai ’007. DECISION With respect to Rejection (I), we affirm the Examiner’s decision to reject claims 1, 3–5, 8, and 11–15, and we reverse the Examiner’s decision to reject claims 2, 10, 18, and 19. With respect to Rejection (II), we affirm the Examiner’s decision to reject claim 6, and we reverse the Examiner’s decision to reject claims 7, 9, 16, 17, and 20. Because our claim interpretation of claim 6 differs from the one relied on by the Examiner, we designate our affirmance of the rejection of claim 6 as a NEW GROUND OF REJECTION so as to provide Appellants with a full and fair opportunity to respond to the thrust of the rejection. Appeal 2013-011019 Application 12/473,314 16 This decision contains a new ground of rejection pursuant to 37 C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides “[a] new ground of rejection pursuant to this paragraph shall not be considered final for judicial review.” 37 C.F.R. § 41.50(b) also provides that Appellants, WITHIN TWO MONTHS FROM THE DATE OF THE DECISION, must exercise one of the following two options with respect to the new ground of rejection to avoid termination of the appeal as to the rejected claims: (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new Evidence relating to the claims so rejected, or both, and have the matter reconsidered by the examiner, in which event the prosecution will be remanded to the examiner. . . . (2) Request rehearing. Request that the proceeding be reheard under § 41.52 by the Board upon the same Record. . . . 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)(1)(iv). AFFIRMED-IN-PART; 37 C.F.R. § 41.50(b)