Ex Parte SOO et al

Patent Trials and Appeals Board

Jan 2, 2019

14548344 - (D) (P.T.A.B. Jan. 2, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/548,344 11/20/2014
28395 7590 01/04/2019
BROOKS KUSHMAN P.C./FG1L
1000 TOWN CENTER
22NDFLOOR
SOUTHFIELD, MI 48075-1238
FIRST NAMED INVENTOR
Brian Thomas SOO
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.
83475375 5559
EXAMINER
GOLDMAN, RICHARD A
ART UNIT PAPER NUMBER
3663
NOTIFICATION DATE DELIVERY MODE
01/04/2019 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 BRIAN THOMAS SOO, BERNARD D. NEFCY,
FRANCIS THOMAS CONNOLY, DAVID PAUL TOURNER,
and DALE SCOTT CROMBEZ 1
Appeal2018-004362
Application 14/548,344
Technology Center 3600
Before BENJAMIN D. M. WOOD, MICHELLE R. OSINSKI, and
SEAN P. O'HANLON, Administrative Patent Judges.
OSINSKI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1-19. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.
1 Ford Global Technologies, LLC ("Appellant") is the Applicant as
provided in 37 C.F.R. § 1.46 and is identified as the real party in interest.
Appeal Br. 2.
Appeal2018-004362
Application 14/548,344
THE CLAIMED SUBJECT MATTER
Claims 1, 7, and 12 are independent. Claim 1 is reproduced below.
1. A vehicle comprising:
an electric machine configured to provide regenerative
braking torque to traction wheels;
wheel brakes configured to provide friction braking torque
to the traction wheels;
at least one power source configured to provide drive
torque to the traction wheels; and
at least one controller configured to command the electric
machine to provide regenerative braking torque over a maximum
regeneration braking distance in response to a detected forward
object, the maximum regeneration braking distance being based
on a powertrain regenerative braking limit and a distance to the
detected forward object, and maintain a pre-set minimum
distance between the vehicle and detected forward object,
without application of the wheel brakes.
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Grolle
Oosawa
Schwindt
Pfefferl
US 2010/0250088 Al
US 2012/0150411 Al
US 2013/0090822 Al
US 2013/0204472 Al
THE REJECTIONS
Sept. 30, 2010
June 14, 2012
Apr. 11, 2013
Aug. 8, 2013
I. Claims 1, 2, 5, 7-9, and 12 stand rejected under 35 U.S.C. § 103 as
unpatentable over Pfefferl, Grolle, and Schwindt. Non-Final Act.
2-5.
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Application 14/548,344
II. Claims 3, 4, 6, and 10-19 stand rejected under 35 U.S.C. § 103 as
unpatentable over Pfefferl, Grolle, Schwindt, and Oosawa. Id. at
5-7. 2
OPINION
Rejection I
Appellant argues claims 1, 2, 5, 7-9, and 12 as a group. Appeal Br.
4--5. We select claim 1 as the representative claim, and claims 2, 5, 7-9, and
12 stand or fall therewith. 37 C.F.R. § 4I.37(c)(l)(iv).
The Examiner finds that Pfefferl teaches many of the limitations of
independent claim 1, including, inter alia, an electric machine, wheel brakes,
at least one power source, and
at least one controller ... configured to command the electric
machine to provide regenerative braking torque over a maximum
regeneration braking distance in response to a detected forward
object, the maximum regeneration braking distance being based
on a powertrain regenerative braking limit and a distance to the
detected forward object, . . . without application of the wheel
brakes.
Non-Final Act. 2-3 (citing Pfefferl ,r,r 3, 22, 31) (italics omitted).
The Examiner acknowledges that "Pfefferl does not explicitly disclose
that the maximum regenerative braking distance considers the maintenance
2 Even though the Examiner failed to include reference to dependent claim
15 in the heading or body of this rejection (Non-Final Act. 5-7), the
Examiner's Answer refers to claim 15 (Ans. 10) and, as noted by Appellant,
"the limitations of claim 15 are similar to the limitations of claim 6" (Appeal
Br. 6 n.1 ), which is included in the rejection. For these reasons, we consider
the Examiner's oversight to be a typographical error, and we include claim
15 as being subject to this ground of rejection. Appellant appears to have
notice of the rejection of claim 15 in that "[Appellant] has addressed the
patentability of claim 15 in conjunction with claim[] 6." Appeal Br. 6.
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Application 14/548,344
of a pre-set minimum distance between the vehicle and a detected forward
object." Id. at 3 (italics omitted). The Examiner, however, finds that
"Grolle teaches the usage of the adaptive cruise control [ ACC] system to
maintain a minimum following distance between the vehicle and a forward
object." Id. (citing Grolle, Abstract). The Examiner concludes that it would
have been obvious "to modify Pfefferl to utilize a safe minimum distance ...
to ensure the safe operation of the host vehicle in a multi vehicle
environment in order to prevent the host vehicle from encroaching too
closely to the forward vehicle such that an [ ACC] system could not
imperceptibly intervene in safely slowing the host vehicle." Id.
The Examiner also finds that "Pfefferl does not explicitly disclose that
the regenerative braking command corresponds to the application of
regenerative braking at the maximum regenerative braking allowable by the
system." Id. The Examiner finds that "Schwindt teaches the application of
the maximum regenerative braking without the application of the vehicle's
friction brakes." Id. (citing Schwindt ,r,r 4, 22). The Examiner concludes
that it would have been obvious "to modify Pfefferl with the ability to
provide the maximum regenerative torque available to the system as it is and
comes available to most efficiently slow the vehicle in an [ ACC] system in
order to eliminate potential delay of a driver." Id. at 3--4.
Appellant argues that "P[ fJefferl requires an application of friction
brakes in order to prevent a collision with and maintain a distance between a
forward detect object" and "[r ]equiring an application of friction brakes
teaches away from maintaining a minimum distance between the vehicle and
a forward detected object without an application of the friction brakes."
Appeal Br. 4. To the extent Appellant is suggesting that Pfefferl teaches
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Application 14/548,344
away from maintaining a pre-set minimum distance between the vehicle and
detected forward object without application of wheel brakes, we note that
prior art does not teach away from claimed subject matter merely by
disclosing a different solution unless the prior art also criticizes, discredits,
or otherwise discourages the solution claimed. In re Fulton, 391 F.3d 1195,
1201 (Fed. Cir. 2004). Here, Appellant does not point to, nor do we
independently find, any disclosure in Pfefferl that criticizes, discredits, or
otherwise discourages a controller that commands an electric machine to
provide regenerative braking for maintaining a pre-set minimum distance
between the vehicle and detected forward object, without application of the
wheel brakes.
In addition, Appellant's argument fails to take into account the actual
language of claim 1, which does not prohibit any and all application of
wheel brakes, but rather requires the controller to command the electric
machine to provide regenerative braking torque and maintain a pre-set
minimum distance between the vehicle and detected forward object without
application of wheel brakes. Appeal Br. (Claims App. 1). Pfefferl's
teaching of a driver applying the brakes after an extended brake regeneration
period (see, e.g., Pfefferl ,r 32) would not lead a person of ordinary skill in
the art away from its teaching, relied on by the Examiner in the rejection of
claim 1, of a controller commanding a "traction motor to act as a generator
and perform brake regeneration" during which time brakes are not applied
by a driver (id. ,r 22). In this way, the teachings of Pfefferl and the claim
language are consistent. See In re Haruna, 249 F.3d 1327, 1335 (Fed. Cir.
2001) (quoting Tee Air, Inc. v. Denso Mfg. Mich., Inc., 192 F.3d 1353, 1360
(Fed. Cir. 1999)) ("A reference may be said to teach away when a person of
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Application 14/548,344
ordinary skill, upon reading the reference, ... would be led in a direction
divergent from the path that was taken by the applicant.").
For the foregoing reasons, we do not find that the Examiner erred in
concluding that the subject matter of claim 1 is rendered obvious by Pfefferl,
Grolle, and Schwindt. We sustain the rejection of claim 1, and claims 2, 5,
7-9, and 12 falling therewith, under 35 U.S.C. § 103 as unpatentable over
Pfefferl, Grolle, and Schwindt.
Rejection II
Claims 3 and 10
Appellant argues claims 3 and 10 as a group. Appeal Br. 5---6. We
select claim 3 as the representative claim, and claim 10 stands or falls
therewith.
Claim 3 recites that:
the controller is further configured to, in response to a power
request and a detected forward object, control the at least one
power source to provide a total power, the total power being less
than the power request and having a magnitude based on a
powertrain regenerative braking limit and a distance to the
forward object.
Appeal Br. (Claims App. 1 ). The Examiner finds that Pfefferl does not
explicitly teach this limitation, but finds that "Oosawa teaches limiting the
power based upon the distance and speed of an inter-vehicular relationship."
Non-Final Act. 5 (citing Oosawa ,r,r 37-38). The Examiner concludes that it
would have been obvious "to modify Pfefferl to include a limitation of
power in order to prevent an unnecessary expenditure of energy by the
system when the control algorithm is attempting to slow a vehicle in order to
avoid blatant energy waste." Id.
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Appellant argues that "nowhere within Oosawa is a hybrid vehicle
that is capable of recovering energy via regenerative braking disclosed," and
"[t]herefore, Oosawa cannot disclose basing a power output of a power
source on a regenerative braking limit." Appeal Br. 6. This argument is
unpersuasive because it attacks Oosawa individually. "Non-obviousness
cannot be established by attacking references individually where the
rejection is based upon the teachings of a combination of references." In re
Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citing In re Keller, 642
F.2d 413,425 (CCPA 1981)). Here, the Examiner finds that Pfefferl teaches
a controller configured to command an electric machine to provide
regenerative braking torque in response to a detected forward object. Non-
Final Act. 2-3. The Examiner also finds that Schwindt teaches commanding
the regenerative braking torque so that it "corresponds to the application of
regenerative braking at the maximum regenerative braking allowable by the
system" and modifies Pfefferl in accordance with these teachings. Id. at 3.
Although Pfefferl/Schwindt does not indicate how the controller is
configured to respond to a power request in light of the detected forward
object, the Examiner turns to Oosawa for teaching limiting power based
upon the distance and speed of an inter-vehicular relationship. Id. at 5. The
Examiner concludes that Oosawa's system that "prevents the vehicle from
fulfilling the total power request of the system" "is equally relevant in a
hybrid electric or pure electric vehicle[]." Ans. 9. By further modifying
Pfefferl/Schwindt so that its controller limits power based upon the distance
and speed of an inter-vehicular relationship as taught by Oosawa, the
Examiner has adequately explained how the combination of references
teaches a controller that is configured to control the power source to provide
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Application 14/548,344
a total power that is less than the power request and is based on a powertrain
regenerative braking limit.
For the foregoing reasons, we do not find that the Examiner erred in
concluding that the subject matter of claim 3 is rendered obvious by Pfefferl,
Grolle, Schwindt, and Oosawa. We sustain the rejection of claim 3, and
claim 10 falling therewith, under 35 U.S.C. § 103 as unpatentable over
Pfefferl, Grolle, Schwindt, and Oosawa.
Claims 6 and 15
Appellant argues claims 6 and 15 as a group. Appeal Br. 6-7. We
select claim 6 as the representative claim, and claim 15 stands or falls
therewith. 37 C.F.R. § 4I.37(c)(l)(iv).
Claim 6 recites that:
the at least one controller is further configured to, in response to
a detected forward object and a driver power request being less
than an associated threshold, control the at least one power
source to provide a total power, the total power being less than
the driver power request and having a magnitude based on a
powertrain regenerative braking limit and a distance to the
forward object.
Appeal Br. (Claims App. 2). The Examiner finds that Pfefferl does not
explicitly teach this limitation, but finds that "Oosawa teaches the limitation
of requested power near in an adaptive cruise control situation." Non-Final
Act. 6 (citing Oosawa ,r,r 37-38). The Examiner concludes that it would
have been obvious "to modify Pfefferl to include controlling the vehicle to
satisfy the power request with regard to the associated thresholds in order to
ensure that the vehicle operates as efficiently as possible so that excessive
energy is not wasted by over powering the vehicle and then require over
braking." Id. The Examiner explains that claims 6 and 15 are similar to
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claims 3 and 10, with "the added limitation that such power request is driver
initiated." Ans. 10. The Examiner explains that "Oosawa was offered as a
teaching where the desired speed is set, ostensibly, by the driver." Id. (citing
Oosawa ,r 37). The Examiner and Appellant take the same positions as in
connection with claims 3 and 10 described above. Non-Final Act. 6; Appeal
Br. 7. For the same reasons described above in connection with claims 3
and 10, we do not find that the Examiner erred in concluding that the subject
matter of claim 6 is rendered obvious by Pfefferl, Grolle, Schwindt, and
Oosawa. We sustain the rejection of claim 6, and claim 15 falling therewith,
under 35 U.S.C. § 103 as unpatentable over Pfefferl, Grolle, Schwindt, and
Oosawa.
Claims 4, 11-14, and 16-19
Appellant relies on the same arguments and reasoning we found
unpersuasive in connection with independent claims 1, 7, and 12 as the basis
for seeking reversal of the rejections of claims 4, 11-14, and 16-19. Appeal
Br. 5. Accordingly, we also sustain the rejection of claims 4, 11-14, and
16-19 under 35 U.S.C. § 103 as unpatentable over Pfefferl, Grolle,
Schwindt, and Oosawa.
DECISION
The Examiner's decision to reject claims 1, 2, 5, 7-9, and 12 under
35 U.S.C. § 103 as unpatentable over Pfefferl, Grolle, and Schwindt is
affirmed.
The Examiner's decision to reject claims 3, 4, 6, and 10-19 under
35 U.S.C. § 103 as unpatentable over Pfefferl, Grolle, Schwindt, and
Oosawa is affirmed.
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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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