Ex Parte Herrmann et al

Patent Trials and Appeals Board

Dec 21, 2017

14105841 - (D) (P.T.A.B. Dec. 21, 2017)

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.
14/105,841 12/13/2013 Matthew Allan Herrmann 83365400 1012
28395 7590 12/26/2017
RROOKS KTTSHMAN P C /FfTET
EXAMINER
1000 TOWN CENTER SHUDY, ANGELINA M
22ND FLOOR
SOUTHFIELD, MI 48075-1238 ART UNIT PAPER NUMBER
3668
NOTIFICATION DATE DELIVERY MODE
12/26/2017 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 MATTHEW ALLAN HERRMANN, QING WANG,
MING LANG KUANG, and RYAN ABRAHAM MCGEE
Appeal 2017-002670
Application 14/105,8411
Technology Center 3600
Before MICHAEL J. STRAUSS, JOYCE CRAIG, and
DAVID J. CUTITTA II, Administrative Patent Judges.
CRAIG, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1-20, which are all of the claims pending in this
application. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 According to Appellants, the real party in interest is FORD GLOBAL
TECHNOLOGIES, LLC. App. Br. 3.
Appeal 2017-002670
Application 14/105,841
INVENTION
Appellants’ invention relates to selective shift transmission initial gear
determination. Abstract. Claim 1 is illustrative of the claimed invention and
reads as follows:
1. A method of operating a hybrid-electric vehicle
having an engine, a traction battery, a traction motor, a
generator and a continuously-variable transmission,
comprising:
receiving at least one of a user-initiated upshift request
and downshift request and a select mode request to simulate to
a user a feel of a step-ratio transmission;
outputting for display a virtual gear selected in response
to an accelerator pedal position and a current vehicle speed; and
varying an output torque in response to the virtual gear
selected and a modified accelerator pedal position and the at
least one of a user-initiated upshift request and downshift
request, by controlling relative speed between an engine speed,
a traction motor speed and a generator speed.
REJECTION
Claims 1-20 stand rejected under 35 U.S.C. § 103 as unpatentable
over the combination of Ueoka et al. (US 7,921,943 B2; issued Apr. 12,
2011) (“Ueoka”) and Davis et al. (US 2014/0121918 Al; published May 1,
2014) (“Davis”).
ANALYSIS
We have reviewed the rejections of claims 1-20 in light of
Appellants’ arguments that the Examiner erred. We have considered in this
Decision only those arguments Appellants actually raised in the Briefs. Any
other arguments Appellants could have made, but chose not to make, in the
Briefs are deemed to be waived. See 37 C.F.R. § 41.37(c)(l)(iv).
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Appeal 2017-002670
Application 14/105,841
We do not find Appellants’ arguments persuasive of error. We agree
with and adopt as our own the Examiner’s findings of facts and conclusions
as set forth in the Answer (2-10) and in the Action (Final Act. 7-22) from
which this appeal was taken. We provide the following explanation for
emphasis.
Appellants contend the Examiner erred in rejecting independent claim
1 because the cited portions of Ueoka do not disclose the recited step of
“outputting for display a virtual gear selected in response to an accelerator
pedal position and a current vehicle speed.” App. Br. 5. Appellants argue
“there is no disclosure of displaying the ‘virtual gear selected’ by the vehicle
controller ‘in response to an accelerator pedal position and a current vehicle
speed,”’ as recited in claim 1. Id. at 6.
We do not find Appellants’ arguments persuasive. The Examiner
found the virtual gear “4,” selected from among positions SP1 to SP8, is
output for display in Ueoka, as shown in element 92 of Figure 1. Ans. 3.
The Examiner further found Ueoka Figure 2 teaches a gearshift position
display command at step SI00 on the meter display unit 90 to the meter
ECU 95 (step 220) and repeating the processing iteratively. Id. (citing
Ueoka 15:1-5). Appellants have not persuasively rebutted the Examiner’s
findings. In the Reply Brief, Appellants state “[t]he Examiner’s
interpretation of Ueoka is unreasonable,” but provide insufficient persuasive
argument or objective evidence in support. See Reply Br. 1. Appellants
merely state in a conclusory manner, “[t]he rejection provides no support in
Ueoka or otherwise for the assertion that ‘[t]he currently selected speed is
interpreted to be the virtual gearshift position selected among the virtual
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Appeal 2017-002670
Application 14/105,841
gearshift positions SP1 to SP8.’ One of ordinary skill in the art would not
understand a to [sic] be a virtual gearshift position.” Id.
Appellants next contend the Examiner erred because Ueoka does not
teach or suggest varying the output torque in response to the virtual gear
selected and a modified accelerator pedal position, as claim 1 requires. App.
Br. 6. Appellants argue “Ueoka merely discloses a strategy for controlling a
vehicle that includes selecting a virtual gear using upshift and downshift
schedules based on accelerator pedal position and vehicle speed similar to a
conventional step-ratio transmission.” Id. (citing Ueoka 15:17-18:9).
Appellants’ arguments are not persuasive at least because they are
based on limitations not recited in the claim. In response to the Examiner’s
findings (see Ans. 4-5), Appellants seek to limit the recited “modified
accelerator pedal position” to one “determined from a lookup table based on
a current accelerator pedal position.” Reply Br. 1 (citing Spec., Fig 4,
Tflj 43 48). We find no explicit or implicit definition of the disputed claim
term in the Specification, and Appellants point to none. Rather, the
Specification makes clear “the disclosed embodiments are merely
exemplary” and “functional details disclosed herein are not to be interpreted
as limiting.” Spec. ^ 16. We, therefore, decline to read unclaimed features
or embodiments of the Specification into claim 1 when the language of
claim 1 is broader. See SuperGuide Corp. v. DirecTV Enters., Inc., 358 F.3d
870, 875 (Fed. Cir. 2004) (noting it is important not to import limitations or
particular embodiments from the Specification into the claim when the
limitations are not part of the claim and the claim language is broader than
the embodiment); In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (the
claims did not limit the controller to a preferred embodiment).
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Appeal 2017-002670
Application 14/105,841
For these reasons, we are not persuaded that the Examiner erred in
finding the combination of Ueoka and Davis teaches or suggests the disputed
limitations of claim 1.
Accordingly, we sustain the Examiner’s 35 U.S.C. § 103 rejection of
independent claim 1, as well as the Examiner’s 35 U.S.C. § 103 rejection of
independent claims 11 and 17, which Appellants argue are patentable for
similar reasons. App. Br. 6. We also sustain the Examiner’s 35 U.S.C.
§ 103 rejection of dependent claims 2-10, 12-16, and 18-20, not argued
separately. Id. at 7.
DECISION
We affirm the Examiner’s decision to reject claims 1-20.
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). See
37 C.F.R. § 41.50(f).
AFFIRMED
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