Ex Parte Sawyers et al

Patent Trial and Appeal BoardSep 18, 2018

14372097 (P.T.A.B. Sep. 18, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/372,097 07/14/2014 22879 7590 09/20/2018 HP Inc. 3390 E. Harmony Road Mail Stop 35 FORT COLLINS, CO 80528-9544 FIRST NAMED INVENTOR Thomas P. Sawyers 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. 83992681 1991 EXAMINER MCDANIEL, TYNESE V ART UNIT PAPER NUMBER 2859 NOTIFICATION DATE DELIVERY MODE 09/20/2018 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): ipa.mail@hp.com barbl@hp.com yvonne.bailey@hp.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte THOMAS P. SA WYERS, JOHN A. WOZNIAK, CHRISTOPHER K. MATTHEWS, and JONG. LIOYD Appeal2017-009400 Application 14/372,097 Technology Center 2800 Before CHRISTOPHER L. CRUMBLEY, CHRISTOPHER C. KENNEDY, and LILAN REN, Administrative Patent Judges. REN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants 1 appeal under 35 U.S.C. Â§ 134(a) from a rejection2 of claims 1-20. We have jurisdiction under 35 U.S.C. Â§ 6(b ). We affirm. 1 The real party in interest is identified as Hewlett-Packard Development Company, LP. Appeal Brief of December 24, 2016 ("App. Br."), 2. 2 Final Office Action of July 26, 2016 ("Final Act."). In this opinion, we also refer to the Examiner's Answer of April 24, 2017 ("Ans.") and the Reply Brief of June 21, 2017 ("Reply Br."). Appeal2017-009400 Application 14/372,097 THE CLAIM Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A system, comprising: an energy storage unit comprising: an energy storage device; a fuel gauge, operatively connected to the energy storage device, to: evaluate an operating parameter of the energy storage device; dynamically determine a state of charge of the energy storage device based on the evaluated operating parameter; determine, using a predetermined charge profile, a requested charge current based on the determined state of charge; and a charging component coupled to the energy storage unit with a single communication line; the fuel gauge to communicate a single modulated signal indicating the requested charge current to the charging component across the single communication line, wherein the single modulated signal is proportional to the requested charge current. App. Br. i (Claims Appendix). REFERENCES The prior art references relied upon by the Examiner in rejecting the claims on appeal are: Johnson Seman English Lee Ghantous Maeagawa US 2006/0091858 Al US 2009/0015206 Al US 2010/0207571 Al US 2011/0089898 Al US 2011/0316548 Al US 2012/0086406 Al 2 May 4, 2006 Jan. 15,2009 Aug. 19, 2010 Apr. 21, 2011 Dec. 29, 2011 Apr. 12, 2012 Appeal2017-009400 Application 14/372,097 REJECTIONS Claims 1-3, 5, 6, 8-11, 13, 14, and 16-20 are rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Ghantous in view of English. Final Act. 3. Claim 4 is rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Ghantous in view of English and Maeagawa. Final Act. 15. Claim 7 is rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Ghantous in view of English and Johnson. Final Act. 17. Claim 12 is rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Ghantous in view of English and Seman. Final Act. 18. Claim 15 is rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Ghantous in view of English and Lee. Final Act. 19. OPINION Claim l3 In arguing for the patentability of claim 1, Appellants first argue that the Examiner erred in construing the claim term "wherein the single modulated signal is proportional to the requested charge current." App. Br. 9. Appellants argue that because "the term 'modulated signal' refers to a signal in which variations in a property of the signal are used to encode information," a skilled artisan would understand the term at issue to mean "a signal with modulation that 'is proportional to the requested charge current."' Id. ( emphases removed); Reply Br. 3. 3 Appellants provide that claims 2, 3,, 8, 10, 11, 14, 16, 17, 19, and 20 stand or fall with claim 1. App. Br. 7; see also 37 C.F.R. Â§ 4I.37(c)(l)(iv) (2013). 3 Appeal2017-009400 Application 14/372,097 In support of the argument, Appellants cite the Specification at 12:8-9 which describes "the PWM [pulse width modulated] duty cycle can be set to correspond proportionally to the desired or requested charge current." App. Br. 9 ( emphases removed); Reply Br. 3. Appellants also provide a dictionary definition: "Modulation: (1) A controlled variation of any property of a wave for the purpose of transferring information." App. Br. 9, fn. 1; Reply Br. 3, fn. 1. 4 As the Examiner points out, claim 1 does not recite "a signal with modulation that is proportional to the requested charge current" as Appellants argue, but rather that the signal itself is proportional to the requested charge current. Ans. 6; see App. Br. 9, Reply Br. 3. Appellants do not adequately explain why construing the claim term "proportional to the requested charge current" to modify a "modulated signal" instead of the modulation ( which is not a term recited in claim 1) would effectively "excise[]" the term modulated from the claim. See App. Br. 9; Reply Br. 4. Appellants' argument equates a "modulated signal" with modulation itself. We decline to construe the claim term as such under the broadest reasonable standard. See also In re Zietz, 893 F.2d 319, 321 (Fed. Cir. 1989) ("[D]uring patent prosecution when claims can be amended, ambiguities should be recognized, scope and breadth of language explored, and clarification imposed."). Appellants argue next that the Examiner reversibly erred in finding that Ghantous teaches or suggests "a fuel gauge ... to ... communicate a 4 The record before us does not include a copy of the page of the source dictionary from which the definition is cited. Nor is it clear whether there are other definitions of the word "modulation" provided in the source dictionary in addition to the definition provided under the paragraph "( 1 )". 4 Appeal2017-009400 Application 14/372,097 single modulated signal, ... the single modulated signal is proportional to the requested charge current" as recited in claim 1. App. Br. 10. Much of Appellants' argument is directed to the Examiner's statement that the signal communicated from a control circuit in Ghantous is inherently proportional to the charge current. See App. Br. 10 (arguing that the prior art circuit does not necessarily communicate such a signal); see Reply 4; see also Final Act. 5 (finding that "signal communicated from control circuitry 16 is inherently proportional to charge current"). Claim 1 recites a system having components such as "a fuel gauge" which performs various functions including "to ... communicate" the signal at issue. 5 "'Functional' terminology may render a claim quite broad. By its own literal terms a claim employing such language covers any and all embodiments which perform the recited function." In re Swinehart, 439 F.2d 210,213 (CCPA 1971). In this case, the Examiner finds that Ghantous describes a control circuitry which "adapts, adjusts, and/or controls one or more characteristics of the charge or current applied to or injected into the battery/cell ... " which teaches or suggests the recited function of the fuel gauge. Final Act. 5 (citing Ghantous ,r 91, Fig. 1); Ans. 8. Appellants argue that other embodiments of the prior art device do not perform the recited function but do not identify reversible error in the Examiner's finding that the prior art device is capable of communicating "at least [such] a single signal." Ans. 9, 11 (emphases removed); see Reply Br. 5-6. 5 Neither the Examiner nor Appellants propose a construction of the claim term "to," followed by a number of functions. We construe the term to mean "capable of' performing the recited functions. 5 Appeal2017-009400 Application 14/372,097 Appellants lastly argue that the Examiner reversibly erred by failing to provide a proper rationale to combine the references. App. Br. 11. Appellants describe English ,r 34, cited by the Examiner in support of the rejection (Final Act. 5), as disclosing that "using a 'maximum power point tracking (MPPT) algorithm"' would "improve operating efficiency," and they argue that English does not provide a proper rationale to combine. App. Br. 11 ( emphases removed). We note, however - as the Examiner points out - the cited portion of English, when read as a whole, states: "The microcontroller 120 uses a maximum power point tracking (MPPT) algorithm 214 to generate a duty-cycle control signal (Power_PV) to the PWM circuit 208 to further improve operating efficiency." English ,r 34. Appellants' argument does not address the entirety of English's teaching, in particular, the prior art algorithm "generate[ s] a duty-cycle control signal ... to further improve operating efficiency." See App. Br. 12 ( emphases removed); see also Reply Br. 8-10. Appellants' assertion that "the Examiner failed to provide a clear explanation as to what is being replaced in Ghantous" (App. Br. 13) is contrary to the Examiner's findings as detailed and supported by citation to the record in both the Final Office Action and the Answer. See Final Act. 5; Ans. 12-13, 15-16, 17-18. Appellants' assertion that the Examiner failed to show that the proposed modification "would in fact 'reduce thermal dissipation"' (Reply Br. 11) is not supported by precedent, which does not require that an improvement over the prior art to be the basis for a reason to combine. See KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) ("[I]f a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious 6 Appeal2017-009400 Application 14/372,097 unless its actual application is beyond his or her skill."); see also In re O'Farrell, 853 F.2d 894, 903-904 (Fed. Cir. 1988) ("Obviousness does not require absolute predictability of success .... all that is required is a reasonable expectation of success."). Claims 6, 13, and 186 Claim 13 depends from claim 10, which depends from independent claim 8 ( a method claim having limitations similar to those of claim 1 ). Claim 10 recites "generating the single modulated signal as a pulse width modulated (PWM) signal," and claim 13 additionally recites "wherein a duty cycle of the PWM signal is proportional to the requested charge current." English, cited by the Examiner for this rejection (Final Act. 8) describes: The charge regulator 110 includes a pulse-width-modulation (PWM) circuit 208 and a feedback circuit 210. The feedback circuit 210 receives one or more feedback signals ( e.g., FB 1 and FB2) indicative of a charge current provided to the battery 140 and/or a battery voltage at the positive terminal of the battery 140. The feedback circuit 210 outputs one or more control signals to the PWM circuit 208 which generates driving signals for the switching transistors 204, 206 to regulate the charge current and/or the battery voltage. English ,r 32. Appellants do not dispute the teaching of English but argue that English is silent as to the "driving signals" being proportional to the charge current. App. Br. 15; Reply Br. 14. Appellants argue that English fails to explain "how the effects of the two 'driving signals' are combined to control 6 Appellants provide that claims 6 and 18 stand or fall with claim 13. App. Br. 13; see also 37 C.F.R. Â§ 4I.37(c)(l)(iv) (2013). 7 Appeal2017-009400 Application 14/372,097 the 'switching transistors 204, 206' to result in a specific current level." App. Br. 15. Appellants argue that a skilled artisan would have understood the driving signals to control the transistors "at different rates that are each not proportional to a desired current level, but that in combination provide the desired current." Id. at 16 (emphases removed). As the Examiner points out, claim 13 does not foreclose the possibility that the fuel gauge may communicate more than a single modulated signal. Ans. 19. Nor does claim 13 recite a specific current level. Unclaimed features cannot impart patentability to claims. In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998). Appellants' remaining argument that the prior art driving signal would be redundant does not identify reversible error in the Examiner's finding that the function of the prior art device includes communicating at least one signal as recited in claim 13. Compare Reply App. Br. 15-16, with Ans. 19. Claims 4, 7, 12, and 15 Appellants argue for the patentability for claims 4, 7, 12, and 15. App. Br. 16-18. Appellants' arguments for these claims are based on the patentability of claim 1 (from which claims 4 and 7 depend) or claim 8 (from which claims 12 and 15 depend). Id. Because claim 8 stands or falls with claim 1 (App. Br. 7 cited in fn. 3 infra), claims 4, 7, 12, and 15 stand or fall with claim 1. DECISION The Examiner's decision is affirmed. 8 Appeal2017-009400 Application 14/372,097 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). See 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 9