Ex Parte Pebley et al

Patent Trial and Appeal Board

Aug 28, 2017

13165826 (P.T.A.B. Aug. 28, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
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Alexandria, Virginia 22313-1450
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/165,826 06/22/2011 Kirk Pebley 83181146 4622
28395 7590 08/30/2017
RROOKS KTTSHMAN P C /FfTET EXAMINER
1000 TOWN CENTER HEINLE, COURTNEY D
22ND FLOOR
SOUTHFIELD, MI 48075-1238 ART UNIT PAPER NUMBER
3668
NOTIFICATION DATE DELIVERY MODE
08/30/2017 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 KIRK PEBLEY,
SANGEETHA SANGAMESWARAN,
WILLIAM JAMES BOUSE,
JOHN MICHAEL JAKUPCO, and
KEVIN ROY HARPENAU
Appeal 2015-003832
Application 13/165,826
Technology Center 3600
Before KEVIN F. TURNER, JILL D. HILL, and ERIC C. JESCHKE,
Administrative Patent Judges.
HILL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Kirk Pebley et al. (Appellants) appeal under 35 U.S.C. § 134(a) from
the Examiner’s final decision rejecting claims 1—20. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.
Appeal 2015-003832
Application 13/165,826
BACKGROUND
Claims 1, 2, and 11 are independent. Claim 2, reproduced below,
illustrates the claimed subject matter.
2. A method for controlling an automotive electric
power steering system comprising:
detecting an auto stop event of an engine; and
in response to detecting the auto stop event of the engine,
reducing by at least one controller an available electric power
steering system current before fuel to the engine is shut off.
REJECTIONS
I. Claims 2, 3, 5, 7, 8, 10-12, 14, 16, 17, and 19 stand rejected
under 35 U.S.C. § 103(a) as unpatentable over Nakai (US 2009/0292454 Al,
pub. Nov. 26, 2009) and Imamura (US 2009/0227417 Al, pub. Sep. 10,
2009). Final Act. 4.
II. Claims 1 and 4 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Nakai, Imamura, and Yamamoto (US 2004/0064228 Al,
pub. Apr. 1, 2004). Final Act. 10.
Ill and IV. Claims 6, 9, 15, 18, and 20 stand rejected under 35
U.S.C. § 103(a) as unpatentable over Nakai, Imamura, and Kaji (US
6,390,229 Bl, iss. May 21, 2002). Final Act. 16, 19.
ANALYSIS
Rejection I
Appellants argue claims 2, 3, 5, 7, 8, 10-12, 14, 16, 17, and 19 as a
group. We select independent claim 2 as representative. See 37 C.F.R.
§ 41.37(c)(l)(iv). Claims 3, 5, 7, 8, 10—12, 14, 16, 17, and 19 stand or fall
with claim 2.
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Application 13/165,826
The dispositive issue in this case is whether the combined teachings of
Nakai and Imamura render obvious “reducing . . . available electric power
steering system current before fuel to the engine is shut off.” The Examiner
finds that Nakai discloses a method for controlling a hybrid vehicle electric
power steering system comprising, inter alia, in response to detecting an
engine auto stop event, reducing an available electric power steering system
current. Final Act. 3^4 (citing Nakai Figs. 3—4,133 (“when the engine is
stopped, the [power steering controller] 18 continuously reduces the current”
to the power steering, and “this reduction is performed gradually”)). The
Examiner finds that while Nakai fails to explicitly disclose reducing an
available electric power steering system current before engine fuel is shut
off, it is known that an engine auto stop event “eventually involves fuel shut
off to the engine.” Id. at 5; Ans. 3. According to the Examiner, Nakai thus
“suggests two predictable auto stop event sequences: [1] current reduction
that is simultaneous with fuel shutoff, and [2] current reduction before fuel
shutoff.” Ans. 5.
The Examiner concludes that, for one skilled in the art, it would have
been “obvious to try, as one of two options, reducing current before fuel
shutoff,” because “[d]oing so would prevent excessive current and battery
discharge while limiting degradation of steering feel, which are common
goals of both Nakai and Appellants.” Id. (citing Spec. 133, Nakai ^fl[ 7—11
(“The invention provides a vehicle control apparatus that can continue the
application of an assist force with an EPS device and maintain good steering
feel even during cranking, while inhibiting the occurrence of excessive
service current.”)
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Application 13/165,826
The Examiner further finds that Imamura discloses reducing available
electric power to an automotive system component before fuel cutoff. Final
Act. 3, 5 (citing Imamura 1113 (“the engine start/stop control portion 66 is
configured to lower the first electric motor speed [] for lowering the engine
speed [] before implementing the fuel cut of the engine 8 . . . .”)). The
Examiner concludes that, given the teachings of Imamura, it would have
been obvious to modify Nakai’s system to reduce available electric power
steering system current before fuel to the engine is shut off “in order to
ensure capabilities of the battery are not exceeded.” Id. at 5—6; see also
Nakai 19 (discussing continuing power steering assist to “maintain good
steering feel even during cranking, while inhibiting the occurrence of
excessive service current.”).
Appellants argue that Nakai discloses only “engine stopping,” which
begins with fuel shut off, rather than an “auto stop event of an engine,”
which begins prior to fuel shut off and is recited in each of independent
claims 1, 2, and 11. Appeal Br. 3^4; Claim App. 1—2.
The Examiner disagrees, contending that Appellants are improperly
equating Nakai’s engine stop with a fuel shut off in an attempt to support
their position that Nakai’s fuel shut off necessarily occurs before current
reduction. Ans. 2—3 (citing Appeal Br. 4 (incorporating an annotated
version of Nakai’s Figure 3)).
The Examiner has the better argument. Appellants offer only
unsupported attorney argument that Nakai’s “engine stopping” begins with
fuel shut off. The argument lacks supporting evidence that, or explanation
regarding why, Nakai’s engine stopping must begin with fuel shut off. Nor
do Appellants provide any support for their argument that an “auto stop
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Appeal 2015-003832
Application 13/165,826
event of an engine” differs from Nakai’s engine stopping and/or that it
begins prior to fuel shut off. While Appellants’ Specification states that an
engine auto stop event may include several enumerated stages including fuel
shut off (Spec. 132), there is no stated requirement that the event begin
before the fuel shut off stage.
Appellants maintain, in a related argument, that “engine stopping”
begins with fuel shutoff, such that the Examiner erred in finding that Nakai’s
Figure 3 supports “two predicable auto stop event sequences: [1] current
reduction that is simultaneous with fuel shutoff, and [2] current reduction
before fuel shutoff.” Reply Br. 3 (citing Ans. 3).
As explained above, Appellants offer only unsupported attorney
argument that Nakai’s “engine stopping” begins with fuel shut off. We are
therefore not persuaded by this argument.
After arguing that Nakai’s time of “engine stopping” is also the time
of Nakai’s fuel shut off, Appellants argue that the Examiner’s finding that
fuel shut off occurs during Nakai’s “engine stopping” is based on inherency
and cannot form the basis for a proper obviousness rejection. Reply Br. 2
(citing In re Robertson, 169 F.3d 743, 745, (Fed. Cir. 1999)). Appellants
base this argument on the Examiner’s admission that Nakai does not
explicitly disclose fuel shut off. Reply Br. 2, Final Act. 5, Ans. 3. This
argument was not raised in the Appeal Brief, and Appellants do not allege
good cause for belated consideration thereof. See 37 C.F.R. § 41.41(b)(2)
(“Any argument raised in the reply brief which was not raised in the appeal
brief. . . will not be considered by the Board for purposes of the present
appeal, unless good cause is shown.”). We decline to consider the merits of
this argument without providing the Examiner with an opportunity to
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Application 13/165,826
respond. We note, however, that Appellants’ own marked-up copy of
Nakai’s Figure 3 designates a fuel shutoff occurrence in Nakai, and
Appellants affirmatively argue that Nakai’s “engine stopping” begins with
fuel shut off. Appeal Br. 3^4.
Appellants lastly argue that the Examiner’s finding that Imamura
discloses “reducing an available electric power before fuel cutoff’ is
necessarily informed by hindsight, because Imamura reduces electric motor
speed to reduce engine speed before fuel shut off, rather than supporting a
“general proposition of reducing available electric power before fuel
shutoff.” Reply Br. 4 (citing Ans. 4). Appellants appear to be arguing that
nothing in Imamura or Nakai would have prompted one skilled in the art to
conclude that Imamura’s reduction of electric motor speed prior to fuel shut
off teaches a reduction of available electrical power prior to fuel shut off.
This argument was not raised in the Appeal Brief and Appellants do
not allege good cause for belated consideration thereof. See 37 C.F.R.
§ 41.41(b)(2). We note, however, that Imamura discloses reducing electric
motor speed prior to fuel cutoff (Imamura 1113), and also discloses a direct
correlation between engine motor speed and “the electric current applied” to
the motor {id. 1162).
For the reasons set forth above, we sustain the rejection of claim 2 as
unpatentable of Nakai and Imamura. Claims 3, 5, 7, 8, 10-12, 14, 16, 17,
and 19 fall with claim 2. We note that claims 7 and 8 depend from claim 6,
which is rejected over Nakai, Imamura, and Kaji. Similarly, claims 16 and
17 depend from claim 15, which is rejected over Nakai, Imamura, and Kaji.
Appellants, however, do not argue the propriety of the rejection of claims 7,
8, 16, and 17 on this basis, so that we do not consider it on appeal.
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Appeal 2015-003832
Application 13/165,826
Rejections II—IV
Regarding Rejection II, Appellants make no argument that claims 1
and 4 would be patentable over Nakai, Imamura, and Yamamoto, if claim 2
is not patentable over Nakai and Imamura. We sustain Rejection II for the
reasons set forth above.
Regarding Rejections III and IV, Appellants make no argument that
claims 6, 9, 15, 18, and 20 would be patentable over Nakai, Imamura, and
Kaji, if claim 2 is not patentable over Nakai and Imamura. We sustain
Rejections III and IV for the reasons set forth above.
DECISION
We AFFIRM the rejection of claims 2, 3, 5, 7, 8, 10-12, 14, 16, 17,
and 19 as unpatentable over Nakai and Imamura.
We AFFIRM the rejection of claims 1 and 4 as unpatentable over
Nakai, Imamura, and Yamamoto.
We AFFIRM the rejection of claims 6, 9, 15, 18, and 20 as
unpatentable over Nakai, Imamura, and Kaji.
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.
§ 41.50(f).
AFFIRMED
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