Ford Global Technologies, LLCDownload PDFPatent Trials and Appeals BoardMay 5, 20212020005568 (P.T.A.B. May. 5, 2021) Copy Citation 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 Appeal 2020-005568 Application 16/045,798 2 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. Appeal 2020-005568 Application 16/045,798 3 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. Appeal 2020-005568 Application 16/045,798 4 “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.” Appeal 2020-005568 Application 16/045,798 5 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 Appeal 2020-005568 Application 16/045,798 6 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. Appeal 2020-005568 Application 16/045,798 7 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 Appeal 2020-005568 Application 16/045,798 8 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.” Appeal 2020-005568 Application 16/045,798 9 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. Appeal 2020-005568 Application 16/045,798 10 ‘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. Appeal 2020-005568 Application 16/045,798 11 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.” Appeal 2020-005568 Application 16/045,798 12 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. Appeal 2020-005568 Application 16/045,798 13 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. Appeal 2020-005568 Application 16/045,798 14 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. Appeal 2020-005568 Application 16/045,798 15 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. Appeal 2020-005568 Application 16/045,798 16 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 Appeal 2020-005568 Application 16/045,798 17 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 Appeal 2020-005568 Application 16/045,798 18 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. Appeal 2020-005568 Application 16/045,798 19 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. Appeal 2020-005568 Application 16/045,798 20 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.” Appeal 2020-005568 Application 16/045,798 21 Thus, in the foregoing limited respects, I respectfully DISSENT from the decision of the majority. Copy with citationCopy as parenthetical citation