Robert Bosch GmbH

Patent Trials and Appeals Board

Feb 2, 2021

2020001467 (P.T.A.B. Feb. 2, 2021)

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.
15/315,790 12/02/2016 Triantafyllos Zafiridis 022862-2546-US00 1095
34044 7590 02/02/2021
MICHAEL BEST & FRIEDRICH LLP (Bosch)
790 N WATER ST
SUITE 2500
MILWAUKEE, WI 53202
EXAMINER
CASEY, LIAM R
ART UNIT PAPER NUMBER
2862
NOTIFICATION DATE DELIVERY MODE
02/02/2021 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):
mkeipdocket@michaelbest.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte TRIANTAFYLLOS ZAFIRIDIS,
ANDRE BOEHM, MICHAEL RUEGER,
OLIVIER COIS, and ANNE JOUFFROY

Appeal 2020-001467
Application 15/315,790
Technology Center 2800
____________

Before ADRIENE LEPIANE HANLON, JEFFREY B. ROBERTSON, and
MICHAEL G. McMANUS, Administrative Patent Judges.

McMANUS, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant1 seeks review of the
Examiner’s decision to reject claims 1–3 and 6–11. We have jurisdiction
under 35 U.S.C. § 6(b).
We affirm.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as Robert Bosch
GmbH. Appeal Brief dated June 13, 2019 (“Appeal Br.”) 2.
Appeal 2020-001467
Application 15/315,790

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CLAIMED SUBJECT MATTER

The present application generally relates to a method of estimating the
electrical capacity of a secondary (i.e., rechargeable) battery. Specification
dated Dec. 2, 2016 (“Spec.”) ¶ 10.
Secondary batteries are used, inter alia, in hybrid and electric vehicles.
Id. ¶ 1. The Specification teaches that it is conventionally known to use
“estimation algorithms which use electrical properties of a secondary battery
to infer or estimate the electrical capacity of the secondary battery.” Id. ¶ 2.
The Specification teaches that these estimation algorithms may include
errors due to the use of measuring electronics with limited accuracy and “no
corresponding dedicated measurements of the electrical capacity are possible
or desirable in electrically drivable motor vehicles.” Id.
The Specification additionally teaches that the electrical capacity of a
secondary battery tends to decrease with age. Id. ¶ 1. Empirical models for
estimating the aging of secondary batteries are also taught to be known. Id.
¶ 4. The Specification teaches that such models may be somewhat
erroneous as “it is difficult to infer actual aging of the secondary battery in
an electrically drivable motor vehicle from aging of a secondary battery
which was previously determined in the laboratory.” Id.
The Specification teaches that errors relating to electrical capacity
may be reduced by taking into account two values, determined in different
ways, for the electrical capacity of the secondary battery. Id. ¶ 11.
Claim 1 is illustrative of the subject matter on appeal and is
reproduced below with certain limitations bolded for emphasis:

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A method for estimating an electrical capacity of a battery,
having the steps of:
acquiring battery-specific state data;
determining a first value for the electrical capacity using an
estimation algorithm (4) and the battery-specific state data or
by measuring the electrical capacity;
determining a second value for the electrical capacity using
an empirical aging model (8) of the battery, which estimates
an electrical capacity of the battery based on an aging of the
battery, and the battery-specific state data;
generating a signal which describes a quality and/or an error
of a last estimation of the electrical capacity;
determining, based on the signal, a first weighted value for the
electrical capacity by multiplying the first value for the
electrical capacity by a first weighting factor;
determining, based on the signal, a second weighted value for
the electrical capacity by multiplying the second value for the
electrical capacity by a second weighting factor;
determining a value sum by adding the weighted values for the
electrical capacity;
determining a weighting sum by adding the weighting factors;
determining an estimated value for the electrical capacity by
dividing the value sum by the weighting sum; and
providing a range of an electrically drivable motor vehicle
based on the estimated value of the electrical capacity;
wherein the weighting of the first value for the electrical
capacity is increased and the weighting the second value for the
electrical capacity is decreased when the error in the last
estimation of the electrical capacity is decreasing, and in that
the weighting of the second value for the electrical capacity is
increased and the weighting of the first value for the electrical
capacity is decreased when the error in the last estimation of
the electrical capacity is increasing.
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Response to Notice of Non-Compliant Appeal Brief dated July 9, 2019
(Claims App. 2–3) (hereinafter “Claims App.”) (reformatted for clarity).
REFERENCES
The Examiner relies upon the following prior art:
Name Reference Date
Schoch US 6,876,175 B2 Apr. 5, 2005
Kumar US 2010/0019726 A1 Jan. 28, 2010
Kobayashi et al.
(Kobayashi”)
US 2012/0161692 A1 Jun. 28, 2012
Bussar et al. (“Bussar”) US 2015/0377972 A1 Dec. 31, 2015
H. Durrant-Whyte, Introduction to Estimation and the Kalman Filter, 4
Australian Centre for Field Robotics (Jan. 2, 2001) (“Durrant-Whyte”)

REJECTIONS
The Examiner maintains the following rejections:
1. Claims 1–3 and 6–11 are rejected under 35 U.S.C. § 112(a)
as failing to comply with the written description requirement.
Non-Final Action dated Dec. 14, 2018 (“Non-Final Act.”) 8–
9.
2. Claims 1–3 and 6–11 are rejected under 35 U.S.C. § 112(b)
as being indefinite for failure to particularly point out and
distinctly claim the subject matter of the invention. Id. at 9–
10.
3. Claims 1–32 and 8–11 are rejected under 35 U.S.C. § 103 as

2 The rejection is titled as the rejection of claims 1–5 and 8–11. The body of
the rejection, however, does not address claims 4 and 5. Non-Final Act. 15–
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being unpatentable over Schoch in view of Durrant-Whyte
and further in view of Kobayashi. Id. at 15–22.
4. Claim 7 is rejected under 35 U.S.C. § 103 as being
unpatentable over Schoch in view of Durrant-Whyte,
Kobayashi, and Kumar. Id. at 22.
5. Claims 1–3, 6, and 9–11 are rejected under 35 U.S.C. § 103
as being unpatentable over Bussar in view of Kobayashi. Id.
at 23–27.
DISCUSSION
Rejection 1. The Examiner rejects claims 1–3 and 6–11 as failing to
comply with the written description requirement. Non-Final Act. 8–9.
In support of the rejection, the Examiner determines that the claimed
steps of “using an estimation algorithm” and “using an empirical aging
model” are not adequately described. Id. at 8. The Examiner finds that the
Specification lacks any actual disclosure of the algorithm or the model. Id.
In its brief, Appellant asserts that the Specification teaches that
estimation algorithms and aging models are conventionally known in the art.
Appeal Br. 5 (citing Spec. ¶¶ 2, 4). Appellant argues that the central issue is
the “use of the two different types of models (estimated and empirical), and
the manipulation of the models to generate the electrical capacity of the
battery.” Id. at 5. Appellant refers us to a technical article regarding state of
health of secondary batteries and aging models. Id. at 6.

22. Additionally, we note that claims 4 and 5 were canceled by amendment
dated November 15, 2018.
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When including an algorithm in the claims, an applicant may “express
that algorithm in any understandable terms including as a mathematical
formula, in prose, or as a flow chart, or in any other manner that provides
sufficient structure.” Finisar Corp. v. DirecTV Grp., Inc., 523 F.3d 1323,
1340 (Fed. Cir. 2008) (internal citation omitted).
Claim 1 requires “determining a first value for the electrical capacity
using an estimation algorithm (4) and the battery-specific state data or by
measuring the electrical capacity.” The Specification teaches the following
regarding the estimation algorithm.
The estimation algorithm can use the battery-specific state data,
for example the last estimated electrical capacity, the electrical
current or the current integral, the electrical voltage, voltage
profiles, the ampere hour throughput, the temperature,
temperature profiles and the like to estimate the electrical
capacity of a secondary battery or a change in the capacity.
Spec. ¶ 15. This is an adequate expression of the algorithm to inform one of
skill in the art that, at the time the Application was filed, the Appellant was
in possession of the claimed step of using an estimation algorithm.
The empirical model limitation expressly requires “an empirical aging
model (8) of the battery, which estimates an electrical capacity of the battery
based on an aging of the battery, and the battery-specific state data.”
Claims App. 2 (emphasis added). This description is also adequate to
inform one of skill in the art that, at the time the Application was filed, the
Appellant was in possession of the claimed step of using an empirical aging
model. Accordingly, we reverse the rejection predicated on the written
description requirement.

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Rejection 2. The Examiner rejects claims 1–3 and 6–11 as indefinite
for failure to particularly point out and distinctly claim the subject matter of
the invention. Non-Final Act. 9–10. More particularly, the Examiner
determines that the claimed steps of “using an estimation algorithm” and
“using an empirical aging model” are indefinite. Appellant relies on the
same arguments set forth above and we find such arguments to establish that
the claimed steps are definite.
The Examiner additionally determines that the meaning and role of
“last estimation of electrical capacity” is unclear. Non-Final Act. 10.
Appellant does not address this basis of rejection in its Appeal Brief. See
Appeal Br. 5–6 (regarding claim rejections predicated on § 112). In its
Reply Brief, Appellant briefly states that the meaning of the term is “clear
on its face.” Reply Brief dated Dec. 16, 2019 (“Reply Br.”) 2. Appellant
has not provided any explanation as to why such argument was omitted from
the Appeal Brief. Accordingly, it will not be considered. See 37 CFR §§
41.33(d) (providing that new evidence will not be admitted except in limited
circumstances) and 41.41(b)(2) (providing that new argument will not be
considered by the Board absent a showing of good cause).
Where an appellant fails to explicitly contest a basis of rejection, that
ground of rejection will be summarily affirmed. See 37 C.F.R.
§ 41.37(c)(1)(iv) (2012); Hyatt v. Dudas, 551 F.3d 1307, 1313‒14 (Fed. Cir.
2008); see also Manual of Patent Examining Procedure (MPEP) § 1205.02
(Rev. 10.2019, June 2020) (“If a ground of rejection stated by the examiner
is not addressed in the appellant’s brief, appellant has waived any challenge
to that ground of rejection and the Board may summarily sustain it, unless
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the examiner subsequently withdrew the rejection in the examiner’s
answer.”).
Accordingly, the Examiner’s rejection on the basis of indefiniteness is
sustained as to all claims.

Rejection 3. The Examiner rejects claims 1–3 and 8–11 as obvious
over Schoch in view of Durrant-Whyte and further in view of Kobayashi.
Non-Final Act. 15–22.
In support of the rejection, the Examiner finds that Durrant-Whyte
teaches the Kalman filter as a weighted average. Non-Final Act. 17. The
Examiner further finds that σ2 within Equation 166 of Durrant-Whyte “is an
observation noise covariance which can be understood as a quality or error
of the last estimation.” Id. at 17–18. Accordingly, the Examiner determines
that Durrant-Whyte teaches
wherein the weighting of the first value for the electrical
capacity is increased and the weighting the second value for the
electrical capacity is decreased when the error in the last
estimation of the electrical capacity is decreasing, and in that
the weighting of the second value for the electrical capacity is
increased and the weighting of the first value for the electrical
capacity is decreased when the error in the last estimation of the
electrical capacity is increasing

as required by claim 1. Id. at 19.
In the Response to Arguments section of the Non-Final Office Action,
the Examiner determines that “[t]he limitation is a contingent limitation
dependent on a claimed error increasing or decreasing.” Id. at 6. The
Examiner explains that “the claim does not even require that an error is
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determined in the first place, because the generated signal may describe a
‘quality’ of the least estimation of electrical capacity instead.” Id.
Appellant argues that the rejection is in error and should be reversed.
Appeal Br. 6–8. Appellant argues that σ2 within Equation 166 of Durrant-
Whyte does not satisfy the “error in the last estimation” limitation (id. at 7)
and that Durrant-Whyte does not teach a second weighting value having a
weighting which changes opposite the first value (id. at 8).
Appellant additionally argues that the “weighting” limitation is not
contingent because the claim requires the weightings to be adjusted both
when the error is increasing and when the error is decreasing, and there is no
alternative form claimed. Id. at 8.
In the Answer, the Examiner maintains that the subject limitation is
contingent in nature. Examiner’s Answer dated Oct. 16, 2019 (“Ans.”) 8.
The Examiner asserts that the weighting limitation is contingent upon “the
error” either decreasing or increasing, however, “the error” refers back to a
limitation expressed in alternative form requiring that a signal “describes a
quality and/or an error.” Id. Appellant does not further address this issue in
the Reply Brief.
A portion of claim 1 is reproduced below for reference.
A method for estimating an electrical capacity of a
battery, having the steps of:
* * *
generating a signal which describes a quality and/or an
error of a last estimation of the electrical capacity;
* * *
wherein the weighting of the first value for the electrical
capacity is increased and the weighting the second value for the
electrical capacity is decreased when the error in the last
estimation of the electrical capacity is decreasing, and in that
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the weighting of the second value for the electrical capacity is
increased and the weighting of the first value for the electrical
capacity is decreased when the error in the last estimation of
the electrical capacity is increasing.
Claims App. 2–3 (emphasis added).
The “generating a signal” limitation is drafted such that “quality” and
“error” may be disjunctive. The weighting limitation is dependent on an
error increasing or decreasing. As the claim does not positively require an
error in the last estimation, the weighting limitation is contingent in nature.
During examination, claim terms must be given their broadest
reasonable construction consistent with the Specification. In re ICON
Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007). The
broadest reasonable interpretation of a claim including a contingent
limitation is an interpretation where the condition precedent is not met. See
Ex parte Schulhauser, Appeal No. 2013-007847 (April 28, 2016)
(precedential). Here, the broadest reasonable interpretation is where the
method generates a signal which describes “a quality” rather than “an error.”
Further, the “error” may be constant rather than increasing or decreasing. In
these cases, the weighting limitation would not be invoked and may not be
relied upon to impart patentability. Accordingly, we do not find Appellant’s
arguments regarding the error in the last estimation or weighting limitation
to be persuasive of error in the rejection.

Rejection 4. The Examiner rejects claim 7 as obvious over Schoch,
Durrant-Whyte, Kobayashi, and Kumar. Non-Final Act. 22. On appeal,
Appellant relies on its arguments presented in regard to the previous
rejection. Appeal Br. 8. As we have not found such arguments to be
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persuasive, we determine that Appellant has not shown error with regard to
the rejection of claim 7.

Rejection 5. The Examiner rejects claims 1–3, 6, and 9–11 as
obvious over Bussar in view of Kobayashi. Non-Final Act. 23–27.
Appellant does not present argument that this rejection is in error in its
principal brief. Appeal Br. 6–8. In its Reply Brief, Appellant argues that
claim 1 “has already been resolved as being allowable over the combination
of Bussar and Kobayashi” earlier in prosecution. Reply Br. 2. Specifically,
Appellant argues that current claim 1 has been amended to include the
limitations of original claim 5 that was previously allowed over Bussar in
view of Kobayashi.
This is not persuasive of error. The limitation at issue (the weighting
limitation) was addressed by the Examiner in the rejection of the claims over
Bussar in view of Kobayashi. Non-Final Act. 24–25.
As the language of the prior claims (amended June 28, 2018) differed
slightly from the operative claims, it is possible that such claims presented
different issues. In any case, the prior allowance is not binding on the
Examiner. “[T]he Commissioner has an obligation to refuse to grant a
patent if he believes that doing so would be contrary to law.” BlackLight
Power v. Rogan, 295 F.3d 1269, 1273–1274 (Fed. Cir. 2002) (quoting In re
Alappat, 33 F.3d 1526 (Fed. Cir. 1994) (en banc)). Similarly, “[t]he
complexity of the examination process, and the potential for error in any
human activity, weigh on the side of according the PTO latitude.”
BlackLight Power, Inc. at 1273.
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In view of Appellant’s omission of any argument regarding the
subject rejection, we summarily affirm the rejection.

CONCLUSION

The Examiner’s rejections are affirmed.
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–3, 6–11 112(a) Written
Description
1–3, 6–11
1–3, 6–11 112(b) Indefiniteness 1–3, 6–11
1–3, 8–11 103 Schoch, Durrant-
Whyte
1–3, 8–11
7 103 Schoch, Durrant-
Whyte, Kobayashi,
Kumar
7
1–3, 6, 9–11 103 Bussar, Kobayashi 1–3, 6, 9–11
Overall
Outcome
1–3, 6–11

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

AFFIRMED