Ex Parte Pitzal et al

Patent Trial and Appeal Board

Aug 18, 2017

13254880 (P.T.A.B. Aug. 18, 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.
13/254,880 11/28/2011 Volker Pitzal 022862-1371-US00 2081
34044 7590 08/22/2017
MICHAEL BEST & FRIEDRICH LLP (Bosch)
100 EAST WISCONSIN AVENUE
MILWAUKEE, WI 53202
EXAMINER
WIBLIN, MATTHEW
ART UNIT PAPER NUMBER
3745
NOTIFICATION DATE DELIVERY MODE
08/22/2017 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):
mkeipdocket@michaelbest.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte VOLKER PITZAL and UDO SCHULZ
Appeal 2016-001423
Application 13/254,880
Technology Center 3700
Before: CHARLES N. GREENHUT, GORDON D. KINDER, and
BRENT M. DOUGAL, Administrative Patent Judges.
DOUGAL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a final rejection of
claims 1, 2, and 4—19. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
CLAIMED SUBJECT MATTER
The claims are directed to a method for operating a hydraulic hybrid
vehicle. The sole independent is claim 1, reproduced below with paragraphs
and indentation added, which is illustrative of the claimed subject matter:
Appeal 2016-001423
Application 13/254,880
1. A method for operating a hydraulic hybrid vehicle (2) having
a primary drive unit (5) and
a hydraulic drive unit (6), which,
to generate a positive or negative torque, is operated with
a hydraulic medium which,
in different operational states, is delivered from a
hydropneumatic low-pressure accumulator (12) into a
hydropneumatic high-pressure accumulator (11) with the aid of
the hydraulic drive unit (6) or discharged from the
hydropneumatic high-pressure accumulator (11) into the
hydropneumatic low-pressure accumulator (12) in order to drive
the hydraulic drive unit (6), characterized in that
one or more first conditions in the hydropneumatic high-
pressure accumulator (11) are detected, and one or more third
conditions in the hydropneumatic low-pressure accumulator (12)
are detected in order to monitor the torque generated by the
hydraulic drive unit (6);
wherein the one or more third conditions include a
pressure.
REJECTIONS
Claims 9, 14, 15, and 19 are rejected under 35 U.S.C. § 112 fourth
paragraph as being of improper dependent form.
Claims 14 and 15 are rejected under 35 U.S.C. § 112 second
paragraph as being indefinite.
Claims 1, 2, and 4—19 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Anderson (US 2008/0279700 Al, pub. Nov. 13, 2008)
and Baumgartl (US 4,781,061, iss. Nov. 1, 1988).1
1 The rejection initially lists claims 1—12, 14, 15, 18, and 19, but deals
substantively with all of the pending claims (i.e. claims 1, 2, and 4—19).
Compare Final Act. 4 with id. at 4—9. Thus, the initial listing appears to
include a number of typographical errors.
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Appeal 2016-001423
Application 13/254,880
OPINION
35 U.S.C. § 112 Fourth Paragraph
Claims 9, 14, 15, and 19 depend from cancelled claim 3 and are
therefore rejected “as being of improper dependent form for failing to further
limit the subject matter of the claim upon which it depends, or for failing to
include all the limitations of the claim upon which it depends.” Final Act. 3.
Relevant to the following rejection, the Examiner also determines that “[f]or
examining purposes, the claim will be examined as if claims 9, 14, 15 and 19
depend upon claim 1.” Id.
Appellants acknowledge the error and suggest that the claims will be
amended to depend from claim 1 at a future time. Appeal Br. 5.
Accordingly, we sustain the rejection.
35 U.S.C. § 112 Second Paragraph
Claims 14 and 15 are rejected “as being indefinite for failing to
particularly point out and distinctly claim the subject matter which the
inventor . . . regards as the invention.” Final Act. 2. In particular, the
Examiner finds that “[i]t is unclear how the third condition [of claims 14 and
15] can measure a temperature when the third condition, as stated in claim 1,
is a pressure.” Id. at 3.
Claim 1 includes: “the one or more third conditions include a
pressure.”
Claim 14 includes: “the one or more third conditions include a
temperature.”
Claim 15 includes: “the one or more third conditions include a change
in a temperature and/or a change in a pressure.”
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Appeal 2016-001423
Application 13/254,880
As argued by Appellants (Appeal Br. 5) and as can be seen by
comparing the claims above, claim 1 does not state that one or more the third
conditions “is a pressure” (Final Act. 3). Rather, claims 1, 14, and 15 all use
the term “include” to describe characteristics that are included in one or
more of the one or more third conditions. As the one or more third
conditions is not limited to a single condition, we conclude that claims 14
and 15 are sufficiently clear to satisfy the requirements of 35 U.S.C. § 112,
second paragraph. Accordingly, we do not sustain the 35 U.S.C. § 112,
second paragraph, rejection on this basis.
35 U.S.C. § 103(a)
Appellants argue the 35 U.S.C. § 103(a) rejection of claims 1,2, and
4—19 together. We select independent claim 1 as representative. See 37
C.F.R. § 41.37(c)(l)(iv).
The Examiner finds that Anderson teaches the majority of features of
claim 1. Final Act. 4—5. Among other features, the Examiner finds that
“Anderson . . . disclose[s] a low pressure accumulator (134) with a
temperature (288) and level (286) sensor for the purpose of measuring the
fluid temperature and level in the low pressure accumulator.” Ans. 9; see
also Final Act. 4—5.
The Examiner relies on Baumgartl to teach “wherein the one or more
third conditions include a pressure.” Final Act. 9. The Examiner finds that
“Baumgartl discloses an accumulator (SP) with a temperature (TS) and
pressure (PS) sensor for the purpose of monitoring the oil volume/level of an
accumulator.” Ans. 9. The Examiner also finds that “both Anderson and
Baumgartl teach monitoring the fluid level of an accumulator.” Id.
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Appeal 2016-001423
Application 13/254,880
The Examiner determines that “[i]t would have been obvious ... to
modify Anderson, by replacing the low-pressure accumulator/temperature
sensor/level sensor with an accumulator/pressure sensor/temperature sensor,
as taught by Baumgartl, for the purpose of monitoring oil volume of an
accumulator.” Final Act. 9; see also Ans. 9 (Determining that the
substitution “achieve[s] the predictable result of monitoring the fluid/oil
level of an accumulator.”).
Appellants argue that “Anderson does not disclose a pressure sensor
in the low-pressure accumulator” and that “the low-pressure accumulator of
Anderson is only provided for volume compensation, and, therefore, there is
no need for the low-pressure accumulator of Anderson to have a pressure
sensor.” Appeal Br. 6.
As noted above, the Examiner relies on Baumgartl for the pressure
sensor rather than Anderson. The Examiner also determines that the
combination provides another way for “monitoring oil volume of an
accumulator.” Final Act. 9. Thus, Appellants’ statement that “there is no
need for the low-pressure accumulator of Anderson to have a pressure
sensor” (Appeal Br. 6.) does not identify error in the Examiner’s reason to
modify Anderson to provide the pressure sensor of Baumgartl. Still further,
Appellants’ statement that “the low-pressure accumulator of Anderson is
only provided for volume compensation” (id.) is consistent with the
Examiner’s findings that Anderson teaches measuring the level (or volume)
in the low-pressure accumulator (Final Act. 9; Ans. 9).
Appellants then argue that the teachings of Baumgartl are not relevant
because “Baumgartl teaches a single accumulator SP, not the claimed high-
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Appeal 2016-001423
Application 13/254,880
pressure accumulator and low-pressure accumulator.” Id. Appellants
further state that the rejection is based on hindsight. Id.
Appellants’ arguments are against Baumgartl individually, where the
rejection is based on the combination of Anderson and Baumgartl. One
cannot show nonobviousness by attacking references individually where the
rejections are based on combinations of references. See In re Keller, 642
F.2d 413, 425 (CCPA 1981) (Explaining that obviousness must be
considered in light of “what the combined teachings of the references would
have suggested to those of ordinary skill in the art.”) (citations omitted).
This argument does not identify error in the Examiner’s reason to modify
Anderson, with its high-pressure accumulator and low-pressure accumulator,
to provide the pressure sensor of Baumgartl in the low-pressure accumulator.
For these reasons, we are not informed of error in the Examiner’s rejection.
Appellants also argue that Anderson teaches an open system for the
low-pressure reservoir that because it is open to the atmosphere would have
no need for a pressure sensor. Reply Br. 2. Appellants acknowledge that
Anderson also teaches a closed system, however Appellants summarily
conclude that a pressure sensor in the reservoir is irrelevant whether for an
open system or a closed system. Id. This position is not supported by
Appellants’ arguments. A closed system is not open to the atmosphere and
thus Appellants have not provided a rationale for the pressure sensor being
irrelevant in a closed system. For these reasons, we are not informed of
error in the Examiner’s rejection.
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Appeal 2016-001423
Application 13/254,880
DECISION
The Examiner’s rejection of claims 9, 14, 15, and 19 under 35 U.S.C.
§112 fourth paragraph is affirmed.
The Examiner’s rejection of claims 14 and 15 under 35 U.S.C. § 112
second paragraph is reversed.
The Examiner’s rejection of claims 1, 2, and 4—19 under 35 U.S.C.
§ 103(a) is affirmed.
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)(l)(iv).
AFFIRMED
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