Ford Global Technologies, LLC

Patent Trials and Appeals Board

May 5, 2021

2020005568 (P.T.A.B. May. 5, 2021)

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.
16/045,798 07/26/2018 Heinrich Enslin 84054584;
67186-682 PUS1
5633
46442 7590 05/05/2021
CARLSON, GASKEY & OLDS, P.C./Ford
400 W. MAPLE RD.
SUITE 350
BIRMINGHAM, MI 48009
EXAMINER
OHMAN, TIFFANY P
ART UNIT PAPER NUMBER
3663
NOTIFICATION DATE DELIVERY MODE
05/05/2021 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):
cgolaw@yahoo.com
ptodocket@cgolaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte HEINRICH ENSLIN,
LILA GHANNAM,
CHARLES EVERETT BADGER II,
XU WANG, and
JEFFERY R. GRIMES

Appeal 2020-005568
Application 16/045,798
Technology Center 3600
____________

Before JENNIFER D. BAHR, MICHAEL L. HOELTER, and
WILLIAM A. CAPP, Administrative Patent Judges.

Opinion for the Board filed by HOELTER, Administrative Patent Judge

Opinion Dissenting in Part filed by CAPP, Administrative Patent Judge

HOELTER, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–20, which constitute all the claims
pending in this application. See Final Act. 1 (Office Action Summary). We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM IN PART.
CLAIMED SUBJECT MATTER
The disclosed subject matter “relates to an electrified vehicle and a
method for gradually adjusting a displayed state of charge of a battery.”
Spec. ¶ 1. Apparatus claim 1 and method claim 14 are independent.
Claim 1 is illustrative of the claims on appeal and is reproduced below.
1. An electrified vehicle, comprising:
a battery;
a display configured to display a state of charge of the
battery; and
a controller configured to adjust the displayed state of
charge such that the displayed state of charge gradually
converges to an estimated state of charge of the battery.
EVIDENCE
Name Reference Date
Kozaki et al. (“Kozaki”) US 5,691,078 Nov. 25, 1997
REJECTIONS

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as “Ford
Global Technologies, LLC.” Appeal Br. 1.
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Claims 1, 2, 9, 10, 14–16, and 19 are rejected under 35 U.S.C.
§ 112(b) as being indefinite for failing to particularly point out and distinctly
claim the subject matter which the inventors regard as the invention.2
Claims 1–3, 5, 6, and 8–20 are rejected under 35 U.S.C. § 102(a)(l) as
anticipated by Kozaki.
Claims 4 and 7 are rejected under 35 U.S.C. § 103 as unpatentable
over Kozaki.
ANALYSIS
The rejection of claims 1, 2, 9, 10, 14–16, and 19
as being indefinite
With respect to claims 1, 10, 14, and 19, the Examiner finds that the
use of “gradually” therein is unclear, thereby rendering the claims indefinite.
See Final Act. 2–3. With respect to claims 2 and 15, the Examiner addresses
the use of “substantially” (or “substantially equal”) therein. Final Act. 3;
Ans. 9–10. With respect to claim 9, the Examiner addresses a lack of
antecedent basis. See Final Act. 3. Appellant presents separate arguments
regarding the terms “gradually,” “substantially,” and the lack of antecedent
basis. See Appeal Br. 3–4. We will separately address each such argument
presented by Appellant, with their respective claims standing or falling
therewith. See 37 C.F.R. 41.37(c)(1)(iv) (2019).

2 The Examiner initially failed to list claim 2 in this rejection but corrected
this oversight in the Examiner’s Answer. See Ans. 9. Additionally, the
Examiner failed to list claim 14 in this rejection, but the rejection of claim
14 is evident by its discussion in the body of this rejection. See Final Act. 2.
We thus include claim 14 in this stated rejection.
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“gradually”
Independent apparatus claim 1 recites a controller that adjusts a
display of the state of charge (“SOC”) of a battery, stating “such that the
displayed state of charge gradually converges to an estimated state of charge
of the battery.” Identical language can also be found in independent method
claim 14. Dependent claims 10 and 19 employ similar usages (“such that
the displayed state of charge gradually converges from the first estimated
state of charge to the second estimated state of charge”). We thus address
this term as it is employed in all these claims, with claim 1 being our focus.
We further understand that a battery’s state of charge (and hence its display)
can vary from 0% to 100%, and that the battery requires charging after use
as per paragraphs 34, 37, 39, and 60 of Appellant’s Specification (each
referencing Figure 2).
The Examiner states that the term “gradually” (as in “the displayed
state of charge gradually converges”) is “not defined” and that Appellant’s
Specification “does not provide a standard for ascertaining” the scope of this
term. Final Act. 2–3. Appellant disagrees stating that a skilled person
“would know what ‘gradually’ means in the context of this application (i.e.,
not ‘abrupt’ or ‘sudden’).” Appeal Br. 3. Indeed, Appellant’s Specification
contains multiple instances making the distinction that “gradually” is not
“abrupt” or “sudden” (see Spec. ¶¶ 30, 48, 52, 57), however, what Appellant
does not identify or address is that which distinguishes the one from the
other such that a skilled person would know if the change in display
occurred “gradually” or not.
Providing some guidance on this point, Appellant’s Specification
states that “Figure 6 is a graphical representation of an example scenario.”
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Spec. ¶ 58. When discussing Figure 6, Appellant’s Specification states,
“[t]he difference in estimated states of charge between times t2 and t3 is
considered an abrupt change in the method.” Spec. ¶ 63 (emphasis added).
Thus, as per Appellant’s Specification the difference in states of charge
between these unspecified times t2 and t3 is “an abrupt change.”
What we don’t know, however, is whether some other difference over
the same or a different time would meet the same fate, i.e., would another
difference/time also be considered an abrupt change or is the difference
provided in the above example a threshold value between “gradually” and
not “abrupt” or “sudden”? Appeal Br. 3. Per the example provided in
Appellant’s Specification, we know that at time t3, “the state of charge of the
battery pack 24 is 75%, which is less than the estimated state of charge of
80% at time t2.” Spec. ¶ 62. In other words, this “less” amount (75% as
compared to 80%) occurring over some time period (t2 to t3) was sufficient
to be “considered an abrupt change.” Spec. ¶ 63. Unfortunately, neither
Appellant’s Specification nor Figure 6 provide assistance in ascertaining
what amount of difference over what time period might be acceptable (i.e.,
“gradually”) or might be unacceptable (i.e., “abrupt”).
This is what the Examiner addressed when stating that there can be
“situations where the same change in the state of charge on display may be
considered abrupt in some situations and gradual in other situations.”
Ans. 7; see also id. at 6, 9. The Examiner also stated that whether a display
“changes abruptly or changes gradually depends on the perception of a
user.” Ans. 7.
Appellant appears to disregard this point stating, “[a]lthough the term
‘gradually’ perhaps does not have the exacting precision the Examiner
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would like, it is no less definite.” Reply Br. 1. However, Appellant’s reply
misses the point the Examiner is making, i.e., “the specification does not
provide a standard for ascertaining the requisite degree” required to
distinguish between values that meet this limitation and those that don’t.
Final Act. 2–3. As a consequence of this silence, and as per the Examiner,
“it would be unclear to one skilled in the art when–or if it is even possible–
for [a user to know if the system employed] infringe the claims.” Ans. 8.
Also troubling is Appellant’s Specification stating that the displayed
state of charge is adjusted “at a rate twice that of the discharge rate of the
battery.” Spec. ¶ 64. Hence, even the rate of change of the display (i.e., that
which is to occur “gradually”) is variable since it depends on the battery’s
discharge rate which depends on driving conditions. Thus, as expressed by
the Examiner above, a rate of display change in one scenario might be
acceptable whereas the same rate of display change in another scenario
might not be. See Ans. 6, 7, 9.
Further, Appellant references a decision by a Board panel “holding
that ‘gradual’ was definite.” Appeal Br. 4 (referencing Ex parte Perkins,
Application No. 14/606,103, dated August 31, 2018, 3–4). However, this
non-precedential decision is not binding on the present Board and further,
the question of “gradual” in that decision differs from the situation presently
before us. To be clear, that panel stated, “Appellant’s definition as set forth
in the Specification, therefore, constrains the recited gradually-adjusted
current slope to that which avoids inducement of noise and vibration.”
Perkins at 4. Here, there is no concern regarding noise or vibration or a
current slope, but instead, the timing of a display change.
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Consequently, and based on the record presented, we agree with the
Examiner that Appellant’s Specification (along with its Figure 6 “graphical
representation of an example scenario” (Spec. ¶ 58)), fails to “provide a
standard for ascertaining the requisite degree” that is meant by the claim
term “gradually.” Final Act. 3–4; see also Ans. 7 (“Those of ordinary skill
in the art would not ‘understand what is claimed when the claim is read in
light of the specification,’ as required by MPEP § 2173.02.”). We sustain
the Examiner’s rejection of claims 1, 10, 14, 16, and 19 as being indefinite.
“substantially”
Both dependent claims 2 and 15 recite changing the displayed state of
charge until it “is substantially equal to the estimated state of charge.” The
Examiner identified the claim term “substantially” (later focusing on
“substantially equal” (Ans. 9)) stating, similar to the above, that this term “is
not defined” and that Appellant’s Specification “does not provide a standard
for ascertaining” the scope of this term. Final Act. 3. To be clear, the
Examiner states, “[i]n the present application, ‘substantially equal’ would
have different meanings depending on the type of display used.” Ans. 9; see
also id. at 10 (“the term ‘substantially equal’ makes the scope of the claim
unclear and renders the claims indefinite”).
Appellant references paragraph 66 of Appellant’s Specification for
support which states that the term “substantially” (as well as other terms) is
“not intended to be [a] boundaryless term[], and should be interpreted
consistent with the way one skilled in the art would interpret those terms.”
See also Appeal Br. 4. As such, Appellant states, “the term ‘substantially
equal’ means what one skilled in this art would consider to be equal” and
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consequently, a skilled person “would be able to understand the scope of the
claims.” Appeal Br. 4.
Indeed, Appellant’s Specification employs the term “substantially
equal” as meaning nearly equal. See Spec. ¶¶ 5, 18, 51 (“the same or
substantially the same”), 54–56. However, none of these citations provide
any gauge or measure by which to distinguish between values that are
“substantially equal” and those that are not. The only possible assistance
located on this topic in Appellant’s Specification is found in paragraphs 60
and 65 thereof.
Paragraph 60 of Appellant’s Specification teaches that the vehicle’s
state of charge “between times t2 to t3” “is intended to be held substantially
constant, in this case at 80%” (it does so by being “on plug”). However, as
expressed later in Appellant’s Specification, at time t3, “the state of charge
of the battery pack 24 is 75%, which is less than the estimated state of
charge of 80% at time t2.” Spec. ¶ 62. Also, and as noted above, because
the state of charge was reduced from 80% and 75% during this period,
Appellant’s Specification labels this difference “an abrupt change.” Spec.
¶ 63. Thus, if the state of charge was successfully held “substantially
constant” as intended (see Spec. ¶ 60), then it can be ascertained that a
difference of 5% provides guidance as to how similar the values can be for
them to be deemed “substantially equal.” However, by Appellant describing
this change of 5% as “abrupt,” one may also surmise that the state of charge
was, actually, not held “substantially constant” as intended, such that this
5% change cannot be deemed “substantially equal.” As a consequence, this
paragraph fails to provide clear guidance as to what is and what is not
encompassed by “substantially equal.”
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Paragraph 65 of Appellant’s Specification also undercuts any concept
that a 5% change is within the range of being “substantially equal.” This is
because paragraph 65 addresses time t4, which is the time at which the
displayed state of charge and the estimated state of charge “are substantially
equal to one another at about 70%.”3 However, this would mean that the
difference of 5% occurring at the earlier time t3 was not deemed by
Appellant to be “substantially equal” because that label is not applied by
Appellant until the two converge at about 70% at time t4. Spec. ¶ 65. Thus,
it is known that a difference of 5% is not sufficient to be deemed
“substantially equal.” Hence, once again, a skilled person is left without, as
expressed by the Examiner, “a standard for ascertaining the requisite degree”
by which values can or cannot be deemed “substantially equal.” Final Act.
3.
Accordingly, and based on the record presented, we sustain the
Examiner’s rejection of claims 2 and 15 as being indefinite.
“lack of antecedent basis”
The Examiner addresses claim 9 (which depends from claim 8) and
particularly the limitation “the difference between drive cycles.” Final
Act. 3. The Examiner states that “[t]here is insufficient antecedent basis for
this limitation” because “[t]he claim language of claim 8 , a difference
between a displayed state of char[g]e and an estimated state of charge,
appears to be different.” Final Act. 3. Appellant disagrees stating, “[t]he
limitation ‘difference’ is defined in claim 8” and that “claim 9’s reference to

3 Between times t3 and t4, the battery is continually discharging, thus the two
values converge at the lower value of 70%. See Fig. 6.
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‘difference’ refers to the ‘difference’ introduced in claim 8.” Appeal Br. 4;
see also Reply Br. 2.
Appellant’s contention is not persuasive because the two claims are
reciting a different “difference.” Claim 8’s “difference” is directed to states
of charge while claim 9’s “difference” is directed to drive cycles. Appellant
does not explain how they are the same.
Accordingly, and based on the record presented, we sustain the
Examiner’s rejection of claim 9 as being indefinite.
The prior art rejections of claims 1–20
in view of Kozaki
The Examiner determines that claims 1–20 are either anticipated by or
obvious in view of Kozaki. See Final Act. 4–7. However, we are informed
that “[i]f no reasonably definite meaning can be ascribed to certain terms in
the claim, the subject matter does not become obvious-the claim becomes
indefinite.” In re Wilson, 424 F.2d 1382, 1385 (CCPA 1970). In other
words, we cannot sustain the rejections of these claims under 35 U.S.C.
§§ 102 or 103 because to do so would require speculation as to the scope of
the claims. See In re Steele, 305 F.2d 859 (CCPA 1962) (holding that the
Board erred in affirming a rejection of indefinite claims under 35 U.S.C.
§ 103(a)). Accordingly, because we sustain the Examiner’s rejection of
claims 1, 2, 9, 10, 14–16, and 19 as indefinite, and because we do not
discern additional recitations in claims 3–8, 11–13, 17, 18, and 204 that
would appear to fully cure the defects inherited from whichever of claims 1,

4 We leave it to the Examiner to clarify the record as to whether these
dependent claims should also be rejected under 35 U.S.C. § 112(b) as
indefinite.
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2, 10, 14, or 19 they depend, the Examiner’s assessment of claims 1–20
under 35 U.S.C. §§ 102 and 103 relative to Kozaki must involve, to some
degree, speculation on the Examiner’s part. As per Wilson and Steele above,
we reverse the Examiner’s art rejections of these claims. It should be
understood, however, that our decision in this regard is based solely on the
indefiniteness of the claimed subject matter, and does not reflect on the
adequacy of the prior art evidence applied in support of the rejection.
CONCLUSION
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/
Basis
Affirmed Reversed
1, 2, 9, 10,
14–16, 19
112 Indefinite 1, 2, 9, 10,
14–16, 19

1–3, 5, 6, 8–
20
102 Kozaki 1–3, 5, 6, 8–
20
4, 7 103 Kozaki 4, 7
Overall
Outcome5
1, 2, 9, 10,
14–16, 19
3–8, 11–13,
17, 18, 20
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)(1)(iv).
AFFIRMED IN PART

5 37 C.F.R. § 41.50(a)(1) states: “The affirmance of the rejection of a claim
on any of the grounds specified constitutes a general affirmance of the
decision of the examiner on that claim.”
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CAPP, Administrative Patent Judge, dissenting in part.

I concur with the majority with respect to the indefiniteness of
“difference between” as it is expressed in claim 9. I further concur with the
majority’s decision to apply the doctrine of In re Steele, 305 F.2d 859, 862
(CCPA 1962), to the Examiner’s art rejection of that claim. As adequately
explained by the majority, claim 8 recites a “difference between” an
estimated state and a displayed state, whereas claim 9 recites a “difference
between” drive cycles. Trying to associate the “difference between” of
claim 8 with the “difference” of claim 9 in the manner argued by Appellant
is confusing at best. If Appellant wants to claim a “difference between”
state of charge conditions, displayed or estimated, that exist in a first drive
cycle compared to that of a second drive cycle, there are certainly better and
less confusing ways to express it than the manner Appellant’s elected to use
in drafting claims 8 and 9.
I part company with my colleagues when it comes to the definiteness
of “gradually” recited in claims 1, 10, 14, and 19. I also part company when
it comes to the definiteness of the term “substantially equal” recited in
claims 2 and 15.
“Gradually” Is A Term of Degree
Persons of ordinary skill in the art generally understand the difference
between events that occur “abruptly” and events that occur “gradually.” The
word “abruptly” connotes something that is instantaneous, immediate, or
rapid. In the context of the rate of change of a parameter that is displayed on
a human interface, an “abrupt” change is a change that occurs quickly over a
relatively short period of time. In contrast, a “gradual” change is a change
that occurs more slowly over time.
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Appellant’s invention relates to a display that is presented to the
operator of a motor vehicle (hereinafter “driver”). Spec. ¶¶ 1–2.6 Indicator
displays are ubiquitous in machines operated by humans. Displays come in
a wide variety of shapes, sizes, and styles. Some displays present
information digitally by displaying numbers. Other displays present
information in an analog format such as a pointer that moves relative to a
scale (hereinafter “needle/dial gauge”). Other display formats are also
known. Regardless of the type of display used, the goals are always the
same: (1) there is information about the condition of the machine that needs
to be communicated to the operator; and (2) information needs to be
communicated in a manner that is efficiently received by the operator.
Systems designers know and understand that the rate of change of a machine
parameter may be displayed in a manner that is more or less compatible with
the information processing capabilities of the human operator. A good
human interface designer seeks to optimize the information transfer from the
machine to the operator both in terms of: (1) efficient transfer of a usable
quantity of information per unit time (transfer rate); and (2) avoidance of
unwanted or undesirable distractions that may interfere with the operator’s
interaction with other displays and controls.
In the instant case, Appellant is specifically dealing with an electronic
vehicle that has a battery. Spec. ¶ 3. It is desirable for the driver to be
informed as to the state of charge of the battery so that the driver, among
other things, knows the range that the vehicle can travel before stopping to

6 For purposes of this dissenting opinion, I will limit my discussion to visual
displays used in human interfaces, to the exclusion of auditory, olfactory,
and tactile displays.
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recharge. Id. To satisfy this desire, Appellant furnishes a display that is
configured to display the state of charge of the vehicle battery. Claims App.,
claim 1.
Designers of man-machine systems understand that there will
invariably be differences between the exact, physical condition of the
machine and the indicated condition that appears on the display. If, for no
other reason, this occurs due to the inherent technological limitations in:
(1) the means to measure machine parameters;7 (2) the means to transfer
information from the measurement means to the display means, and,
(3) limitations of the display itself (also known as “indicator error”). Thus,
it is understood that the information displayed is, at least to a certain extent,
merely an approximation of the actual physical condition of the machine.
Despite this fact, human beings have successfully operated complex
machines and vehicles for well over a century.
Designers of man-machine systems have learned that it is not always
necessary or beneficial for an indicator to display changes in a machine
parameter at the same rate that they occur in real time. For example, a
machine parameter may, at times, undergo such rapid fluctuations that the
needle on a needle/dial gauge may appear to the operator as a blur that is
both difficult to read and distracts the operator’s attention from where it
belongs. The same can be true for exceedingly rapid changes in a digital,
numeric display. Thus, designers know to modulate the rate of change of a
display vis-à-vis the actual rate of change of the indicated machine
parameter.

7 Appellant appears to acknowledge the inherent limitations in measuring
means for machine parameters by referring to “estimated” state of charge.
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In the instant case, Appellant is concerned with the prospect of
confusing or alarming a driver by displaying sudden, relatively large
changes in a vehicle battery’s indicated state of charge. Spec. ¶ 31. Stated
differently, the display should not distract or disorient the driver so that the
vehicle is operate unsafely. This is a legitimate reason to display
information at a rate that is other than in real time. Appellant does this by
taking information related to relatively large and abrupt changes of a battery
state of charge in real time and slowing the indicated rate of change so that it
appears that the state of charge is changing more slowly than it is actually
changing in real time. As the actual state of charge stabilizes over time from
an abrupt change, the indicated state of charge catches up with or
“converges” with the actual state of charge of the battery. Since the
indicated state of charge, over time, changes more slowly than intermittent,
abrupt, actual changes in the state of charge, Appellant describes and claims
this temporary, artificially slower, indicated rate of change as “gradual.” See
Claims App., claim 1.
Although I disagree with the majority’s position on this issue, the
position is, at least, easy to understand. If someone starts to slow the
indicated rate of change vis-à-vis the actual rate of change, at what point
does the incrementally slowed rate of change become “gradual” as opposed
to more than gradual? However, this issue is not unique to the particular
facts of this case. It is well settled that “a patentee need not define his
invention with mathematical precision in order to comply with the
definiteness requirement.” Invitrogen Corp. v. Biocrest Mfg., L.P., 424
F.3d 1374, 1384 (Fed. Cir. 2005). Although Section 112(b) mandates
clarity, courts also understand that “absolute precision” is often unattainable.
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Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 910 (2014). Thus,
“the certainty which the law requires in patents is not greater than is
reasonable, having regard to their subject-matter.” Sonix Technology Co.,
Ltd. v. Publications Int’l, Ltd., 844 F.3d 1370, 1377 (Fed. Cir. 2017)
(quoting Nautilus, 572 U.S. at 910).
Here, “gradually” is used as a term of degree as it calls for a
comparison against some baseline. Liberty Ammunition, Inc. v. United
States, 835 F.3d 1388, 1395 (Fed. Cir. 2016). However, not all terms of
degree are indefinite. See Interval Licensing LLC v. AOL, Inc., 766
F.3d 1364, 1370 (Fed. Cir. 2014). A term of degree is not indefinite where
the specification provides a standard or baseline for measuring that degree.
Liberty Ammo, 835 F.3d at 1395. In other words, terms of degree are not
inherently indefinite and are only problematic if their baseline is unclear to
those of ordinary skill in the art. Id. at 1395–96. Thus, we should look to
Appellant’s Specification to see if it provides a baseline for comparison for
determining whether an indicated state of charge is “gradual.”
Appellant’s Specification provides the following teaching that
provides a baseline for comparison:
This disclosure is particularly beneficial when the estimated
state of charge of the battery abruptly changes, which may
occur when changing drive cycles. In such situations, the user
does not perceive a sudden change in state of charge because
the displayed state of charge is adjusted gradually. In this way,
the user is not confused or alarmed by a sudden change in the
state of charge of the battery, which leads to improved
consumer confidence.
Spec. ¶ 30 (emphasis added). Here, the baseline relates to human
perception. We are not dealing with concepts of “abrupt” and “gradual” in
an abstract and unqualified sense. Rather, we are dealing with a change that
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is not perceived by a driver as an “abrupt” change. When the battery
undergoes a sudden and abrupt decrease in state of charge, the invention
displays an artificially calculated slower rate of discharge, i.e., a “gradual”
change, that comports with the driver’s expectations under typical driving
conditions. An abrupt or sudden change in discharge rate would be
perceived by the driver as a departure from the expected gradual rate of
change under normal driving conditions, thereby causing confusion or alarm.
Stated differently, under normal driving conditions, the state of charge
decreases at a, more-or-less, predictable rate. This creates an expectation as
to the discharge rate of a vehicle battery under normal operating conditions.
This expectation allows the driver to plan when next to stop to recharge the
battery and provides the driver with a certain degree of confidence that the
driver will not become stranded on the side of the road. The instant
invention is understood as characterizing the normal, expected, and
predictable rate of battery discharge as a “gradual” discharge rate. See
Figure 6 (slope of estimated SOC between t1 and t2 and between t3 and t5).
This provides the requisite standard or baseline for comparison for the term
of degree “gradually” in claim 1.
Over time, a driver will internalize an expected rate of discharge
which may be thought of as a mental or perceptual threshold. As long as the
indicated rate of charge remains below this perceptual threshold, the driver
is not surprised or alarmed as to the condition of the vehicle. If the rate of
charge suddenly exceeds this perceptual threshold, the driver is surprised or
alarmed. While this perceptual threshold may vary somewhat from driver to
driver, statistical techniques known in the field of behavioral science can
account for such variations with sufficient certainty that the difference
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between a perceived “abrupt” change and a perceived “gradual” change can
be determined with the definiteness required by Section 112(b). In my
opinion, the existence of normal statistical variations of perception within
the human population is not, at least by itself, a reason for denying patent
protection to an inventor.
In the Sonix case, the term of degree “visually negligible” was
determined to be definite. Sonix, 844 F.3d at 1377. Appellant’s “gradually”
term is no less definite than “visually negligible” in Sonix. In the instant
case, the standard or baseline comparison for what is “gradual” is the
typical, expected rate of battery discharge under normal driving conditions.
Using the normal battery discharge rate as a standard or baseline, “gradually
converges” is understood to be an indicated battery discharge rate that
reasonably approximates what the driver would expect under normal driving
conditions. See Figure 6 (relationship of displayed SOC and estimated SOC
between t3 and t4). In cases such as these, rather than impose a strict
numerical boundary, the better approach is to maintain and apply existing
legal principles regarding terms of degree. Liberty Ammo, supra; Interval
Licensing, supra; Sonix, supra.
In situations where there is an accusation of infringement as to
whether the accused infringer’s instrumentality falls inside or outside the
scope of a claim bound by a term of approximation, such disputes are best
resolved on a case-by-case basis by a jury given the particular facts of a case
and properly guided by a court’s Markman claim construction. Juries are
well equipped to resolve disputed issues of fact related to human perception.
For example, in design patent disputes, we apply an “ordinary observer” test
to determine whether two designs are “substantially the same.” Gorham Co.
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v. White, 81 U.S. 511 (1871); Columbia Sportswear North America, Inc. v.
Seirus Innovative Accessories, Inc., 942 F.3d 1119, 1129 (Fed. Cir. 2019).
In view of the foregoing, I would construe the term “the displayed
state of charge gradually converges to an estimated state of charge” to mean
that the rate of change of the indicated state of charge reasonably
approximates the expected rate of change under normal driving conditions.
Using this construction, I do not consider Appellant’s use of the term
“gradually” to render claims 1, 10, 14, and 19 indefinite. I would reverse the
Examiner’s claim rejections based on the alleged indefiniteness of
“gradually.” Otherwise, I express no opinion as to the merits of any of the
Examiner’s art rejections of claims that contains the term “gradually.”
“Substantially” Is a Term of Approximation
In claim 2, Appellant uses the term “substantially equal” to indicate
that the displayed state of charge is approximately the same as the estimated
state of charge. Claims App. The term “substantial” is often used as a
modifier to imply “approximate” rather than “perfect.” Playtex Prods., Inc.
v. Proctor and Gamble Co., 400 F.3d 901, 907 (Fed. Cir. 2005). As
previously discussed, owing to the inherent limitations of data sampling and
display technology, it is virtually impossible for any display indicator to
actually accurately and perfectly display almost any machine parameter.
Almost every display is, to some text, an approximation of the actual
parameter. Indeed, Appellant’s claims recite an “estimated,” not exact, state
of charge. Although we could require Appellant claim display accuracy
within a certain range, prevailing law on the use of terms of approximation
does not require us to do so.
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Settled law maintains that words of approximation, such as
“generally” and “substantially,” are descriptive terms commonly used in
patent claims to avoid a strict numerical boundary to the specified
parameter. Anchor Wall Sys. v. Rockwood Retaining Walls, Inc., 340
F.3d 1298, 1311 (Fed. Cir. 2003). I see no reason not to apply the principles
of Anchor Wall to the instant case.
In the instant case, after there is an abrupt change in the actual state of
charge, there will be a difference between the indicated state of charge and
the actual state of charge. This difference will decrease “gradually” over
time in accordance with what, in my opinion, has been disclosed and
claimed in claim 1 with the requisite definiteness required by
Section 112(b). This “gradual” process continues until the indicated and
estimated states of charge are almost equal, or nearly equal, or, in other
words “substantially equal.” With this understanding, construing
“substantially equal” is merely a garden variety example of using a term of
approximation. Anchor Wall, 340 F.3d at 1311.
Again, the better approach is to allow a jury to hear evidence as to
how close the indicated state of charge approaches an actual state of charge
in an accused electronic vehicle and then decide, under the facts of that
particular case, whether the displayed state of charge is “substantially equal”
to the estimated state of charge.
I would reverse the Examiner’s claim rejections based on the alleged
indefiniteness of “substantially equal.” Otherwise, I express no opinion as to
the merits of any of the Examiner’s art rejections of claims that contains the
term “substantially equal.”
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Thus, in the foregoing limited respects, I respectfully DISSENT from
the decision of the majority.