Ex Parte Jennings

Patent Trial and Appeal Board

Nov 15, 2016

13789803 (P.T.A.B. Nov. 15, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
131789,803 03/08/2013
28395 7590 11/17/2016
BROOKS KUSHMAN P,CJFG1L
1000 TOWN CENTER
22NDFLOOR
SOUTHFIELD, MI 48075-1238
FIRST NAMED INVENTOR
Mark John Jennings
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.
83338876 2533
EXAMINER
LEONG, JONATHAN G
ART UNIT PAPER NUMBER
1725
NOTIFICATION DATE DELIVERY MODE
11/17/2016 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 MARK JOHN JENNINGS 1
Appeal2015-004658
Application 13/789,803
Technology Center 1700
Before CHUNG K. PAK, JEFFREY T. SMITH, and
WESLEY B. DERRICK, Administrative Patent Judges.
DERRICK, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal under 35 U.S.C. § 134(a) from the
Examiner's maintained final rejection of claims 1 and 3. 2 We have
jurisdiction pursuant to 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellant, the Real Party in Interest is Ford Global
Technologies, LLC. Appeal Brief filed September 25, 2014 ("App. Br."), 2.
2 Claims 4 and 5 stand withdrawn from consideration. Final Office Action
entered April 25, 2014 ("Final Act."), 2.
Appeal2015-004658
Application 13/789,803
CLAIMED SUBJECT MATTER
Appellant's claimed invention is generally directed to a method for
controlling a vehicle that includes a fuel cell system and an energy storage
unit. Spec. Abstract.
Claim 1 is illustrative:
1. A method for controlling a vehicle including a fuel cell
system and an energy storage unit, the method comprising:
selecting, while the fuel cell system is not charging the
energy storage unit, a target operating power for the fuel cell
system that generally minimizes drive cycle hydrogen
consumption based on vehicle power demand and a ratio of a
change in energy stored in the energy storage unit to a mass of
hydrogen consumed to generate the change in energy stored,
wherein the ratio is based on a mass of hydrogen consumed by
the fuel cell system while charging the energy storage unit; and
operating the fuel cell system to generate the selected
target operating power.
App. Br. Claims Appendix.
REJECTION
The Examiner maintains the final rejection of claims 1 and 3 under
35 U.S.C. § 103(a) as obvious over Brigham et al. (US 5,820,172, issued
October 13, 1998) ("Brigham") in view of Paganelli et al., Optimizing
Control Strategy for Hybrid Fuel Cell Vehicle (2002) ("Paganelli"). 3
DISCUSSION
Having reviewed the Examiner's rejection in light of arguments
advanced by Appellant in the Appeal Brief and Reply Brief, 4 we are not
3 Examiner's Answer entered January 16, 2015 ("Ans.").
4 Reply Brief filed March 20, 2015.
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Application 13/789,803
persuaded that the Examiner errs reversibly in concluding that claims 1 and
3 are unpatentable for obviousness. We add the following for emphasis.
Appellant argues claims 1 and 3 as a group on the basis of claim 1, to
which we limit our discussion. App. Br. 2-3.
The Examiner finds that Brigham discloses a method for controlling
the main power unit (HPU) of a hybrid vehicle, where the HPU can be a fuel
cell, and an energy storage system (ESS), where the ESS can be battery, that
involves selecting, while the fuel cell is not charging the energy storage
system, an operating strategy (a target operating power) for the fuel cell that
generally minimizes fuel cost (drive cycle fuel consumption). Ans. 2-3
(citing, inter alia, Brigham Abstract, col. 3, 11. 45--48, col. 4, 11. 13-16, 30-
36, 40--43, Fig. 3). As explained by the Examiner, the disclosed method
takes into account the efficiency of producing power directly using the HPU
and the charging efficiency of the ESS for power that is available to be
drawn from the ESS, and, based on motive demand power (vehicle power
demand), determines the target operating power of the fuel cell (as well as
the power to be drawn from the ESS) to minimize fuel consumption and then
operates the fuel cell at that power. Ans. 3.
The Examiner acknowledges that Brigham does not explicitly disclose
that the fuel for the fuel cell is hydrogen, and relies on Paganelli's disclosure
of hydrogen as a fuel being used in similar fuel cell and energy storage unit
for use in hybrid vehicles to shown its use in such was well known in the art
at the time of the invention. Ans. 3.
The Examiner concludes that the combined disclosures of Brigham
and Paganelli would have led one of ordinary skill in the art at the time of
the invention to the method recited in claim 1. Ans. 3.
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Application 13/789,803
Appellant argues that the significant amount of time that elapsed
between the publication of Brigham ("more than a decade") and the filing
date of the instant application provides evidence of the non-obviousness of
the method of claim 1. App. Br. 2-3.
We find this argument wholly without persuasive merit as it fails to
identify reversible error in the Examiner's factual findings or conclusion of
obviousness. Moreover, the age of a prior art reference alone is insufficient
to establish non-obviousness. In re Wright, 569 F.2d 1124, 1127 (CCPA
1977) ("The mere age of the references is not persuasive of the
unobviousness of the combination of their teachings, absent evidence that,
notwithstanding knowledge of the references, the art tried and failed to solve
the problem.").
Appellant also argues that the combined disclosures of Brigham and
Paganelli "cannot yield the claimed invention" because Brigham teaches that
that the quantity of fuei consumed to provide the energy stored in the energy
storage system is initially estimated, and is then incremented or decremented
based on subsequent operating conditions, rather than based on an amount of
fuel consumed by the fuel cell while actually charging the energy storage
system, and because Paganelli does not disclose or suggest selecting a target
operating power by determining the energy stored in an energy storage
system based on the amount of fuel consumed by a fuel cell to achieve the
level of stored energy (the charge) of the energy storage system. App. Br. 3
(citing Brigham col. 14, 11. 21-22, 38-55).
We find Appellant's arguments unpersuasive of reversible error
because, inter alia, they fail to address the rejection as set forth by the
Examiner and what is reasonably taught or suggested by the cited prior art.
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Application 13/789,803
Appellant's assertions regarding what Brigham "teaches" do not address the
portions of Brigham relied on by the Examiner, but are rather directed solely
to the language of Brigham's claim 1. 5 However, Brigham's disclosures are
not so limited, and the entirety of Brigham's disclosures must be evaluated
for what they would have fairly suggested to one of ordinary skill in the art
at the time of the invention. Merck & Co. v. Biocraft Labs., Inc., 874 F.2d
804, 807 (quoting In re Lamberti, 545 F.2d 747, 750 (CCPA 1976)("[T]he
fact that a specific [embodiment] is taught to be preferred is not controlling,
since all disclosures of the prior art, including unpreferred embodiments,
must be considered."); In re Boe, 355 F.2d 961, 965 (CCPA 1966) (All of
the disclosures in a prior art reference "must be evaluated for what they
fairly teach one of ordinary skill in the art."); In re Preda, 401 F.2d 825, 826
(CCPA 1968) (it is well established that in evaluating references, "it is
proper to take into account not only the specific teachings of the references
but aiso the inferences which one skiiied in the art wouid reasonabiy be
expected to draw therefrom."). As such, Appellant's arguments regarding
Paganelli fail to address the basis for the Examiner's reliance on this
reference.
Further, we emphasize that we agree with the Examiner that
Paganelli's disclosure of using hydrogen as a fuel source for a fuel cell in a
hybrid vehicle (Paganelli Abstract; 2, col. 2), in combination with Brigham's
disclosure of selecting an operating strategy for a hybrid vehicle that
minimizes fuel usage while the vehicle's fuel cell is not charging the
5 Appellant cites col. 14, 11. 21-22, 38-55 of Brigham, which refer to
portions of Brigham's claim 1. App. Br. 3.
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Appeal2015-004658
Application 13/789,803
vehicle's energy storage system based on the motive demand power (vehicle
power demand) by accounting for the quantity of fuel used to charge the
energy storage system, in addition to the quantity of fuel consumed by the
fuel cell, and operating the vehicle according to the operating strategy (see,
e.g., Brigham col. 4, 11. 13--45), reasonably would have led one of ordinary
skill in the art at the time of the invention to the method of claim 1.
Accordingly, Appellant's arguments do not establish reversible error
in the Examiner's conclusion that one of ordinary skill in the art reasonably
would have arrived at the method of claim 1 in view of the combined
disclosures of Brigham and Paganelli. In re Jung, 637 F.3d 1356, 1365-66
(Fed. Cir. 2011) (explaining that even if the examiner had failed to make a
prima facie case, it has long been the Board's practice to require an appellant
to identify the alleged error in the examiner's rejections). We accordingly
sustain the Examiner's rejection of claims 1 and 3 under 35 U.S.C. § 103(a).
DECISION
In view of the foregoing, the Examiner's rejection of claims 1 and 3
under 35 U.S.C. § 103(a) is AFFIRMED.
No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(l).
AFFIRMED
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